Q: Internacional Law. Can any legal steps be made in this situation with the company in China?
A week ago I made a purchase of 120 thermometers for my uncle’s clinic in Peru from a company in China. The agent told me the total and arranged the delivery who guaranteed that it would be delivered to the clinic in Peru. A wire transfer was made to their bank in Hong Kong (HSBC) from J.p. Morgan Chase. After the transfer, we needed a certificate for customs, meanwhile in Peru changes occurred in the medical and health ministry and didn’t allow the purchase or importation of thermometers by clinics only through drugstore companies that had permission and certificates. I passed on this information to the agent I told her that we could not continue and the product cannot be shipped due to the circumstances. I asked for the money to be transferred back since the purchase nor a delivery was made. She said that according to her Department of Finance this could not be done, that I would need to use money for another product, but i don’t need anything. Just want the money transferred back.
A:
There are a few issues here that are going to have a bearing on the answer.
First and foremost, did you have a written contract (even emails back and forth confirming terms) or was this all oral communications? If you have a written contract, those terms would control. Was your contract (either oral or written) with the agent or the Chinese company? If with the agent, where is the agent located?
You say the company was Chinese, but the bank account was in Hong Kong. Was the agent or company based in mainland China or in Hong Kong? China and Peru are both signatories to the Convention for the International Sale of Goods (CISG). Hong Kong (although part of China) has typically been found to not be bound by the terms of the CISG due to issues when the United Kingdom turned control over to China and Hong Kong's special status within China.
If the CISG applies, Article 79 would likely allow you to claim a refund since a new impediment (Peru's government regulations) unexpectedly arose to prevent the contract from being fully performed.
But ultimately if the agent/company are refusing to return the money that you already paid, you may need to engage Chinese or Hong Kong counsel to assist with recovery of the money.
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