China: 热评 | 12.98元买车的法律思考

Last Updated: 9 August 2019
Article by Meng Ice

 近日,一则视频火爆网络。视频录制地点是在秦皇岛某4S店内。原来,该店因在出租车上做广告,错将售价12.98万元一辆的汽车,写成了12.98元。结果,4S店被群众围的水泄不通,纷纷要用13元买一辆汽车。甚至有一位大爷,义正言辞的把《广告法》挂在嘴边,高举着"法律武器"与"无良奸商"作斗争。事后,4S店为了平息风波,发出了公告,为了不欺骗消费者,拿出两辆汽车,以抽奖的方式按12.98元销售。但不到一天,又再次发公告称,市场监督管理局禁止以这种方式出售汽车,因此4S店决定,向社会福利机构捐赠一辆汽车。

  我们认为,仅因为广告上遗漏了一个"万"字,就赔上一辆汽车,4S店依法其实并不用如此破费。下面,我们试从法律的角度分析如下:

  首先,4S店的广告不是"要约",只是"要约邀请"。

  《合同法》第十三条规定:"当事人订立合同,采取要约、承诺方式。"第十四条规定:"要约是希望和他人订立合同的意思表示,该意思表示应当符合下列规定:(一)内容具体确定;(二)表明经受要约人承诺,要约人即受该意思表示约束。"《合同法》第十五条规定:"要约邀请是希望他人向自己发出要约的意思表示。寄送的价目表、拍卖公告、招标公告、招股说明书、商业广告等为要约邀请。商业广告的内容符合要约规定的,视为要约。"由以上规定可知,大爷作为承诺方,拿出13元就想使买车合同成立,前提是4S发出的是要约。而一份买车合同包括许多内容,仅有价格的广告,一般来说并不被认为是"要约",而仅为"要约邀请"。所以当顾客看到这则广告要求购买时,并不会当然地导致买卖合同成立。

  其次,即使这则广告是"要约",买车合同因大爷的承诺而成立,因该合同的价款并不是4S店的真实意思表示,而是重大误解,买车合同也是无效或可撤销的合同。

  根据《民法总则》第一百四十三条规定,行为人意思表示真实,是民事法律行为有效的条件之一。而对于何为真实意思表示,该法第一百四十二条规定:"无相对人的意思表示的解释,不能完全拘泥于所使用的词句,而应当结合相关条款、行为的性质和目的、习惯以及诚信原则,确定行为人的真实意思。" 一辆汽车的成本,远不止12.98元,这是一个不用证明的常识。而作为一个以销售汽车赢利的企业,4S店的这则广告,显然并不是真实意思表示。以如此低价要求购买汽车,明显有违诚实信用原则。故该买卖行为应属无效。

  退一步讲,即使买卖行为有效,该低价合同的成立,是因为4S店打广告时,遗漏了一个"万"字,属于行为人因自己的疏忽使合同价款出现了重大误解。根据《民法总则》第一百四十七条的规定,"基于重大误解实施的民事法律行为,行为人有权请求人民法院或者仲裁机构予以撤销。"因此,这也是一份可撤销的合同。

  再次,该广告并不属于虚假广告。

  《广告法》第二十八条规定了"虚假广告"的定义,即"广告以虚假或者引人误解的内容欺骗、误导消费者的,构成虚假广告。"

  本次事件中,要求以12.98元买车的人,很多都打着《广告法》的名义要求4S店卖车,称如果4S店不卖,就是发布了虚假广告。虽然,4S店的广告中车辆出售金额写错,确实对消费者存在一定误导。但是纵观整个事件,出售金额的错误应是工作人员的疏忽,而非故意为之。并不存在故意压低商品价格挤压同行的不正当竞争的行为。并且,具备常识的人,也知道不可能以12.98元的价格买到一辆汽车。少写了"万"字的广告,并不会真正令消费者产生误解。很明显,这样的广告也不能被认定为虚假广告。

  最后,要求以12.98元买车的群众,如果"闹事"严重,可能受到行政处罚。

  根据《治安管理处罚法》第二十三条规定,扰乱车站、港口、码头、机场、商场、公园、展览馆或者其他公共场所秩序的,处警告或者二百元以下罚款,情节较重的,处五日以上十日以下拘留,可以并处五百元以下罚款。聚众实施的,对首要分子处十日以上十五日以下拘留,可以并处一千元以下罚款。

  本次事件中,因4S店的广告一字错误,出现了店铺被群众围堵的情况,很难判断究竟有多少人就是为了"凑热闹"加入了"闹事"。要求12.98元买车的群众围堵在4S店门口,影响了商家的正常经营活动,若经劝阻仍不离开,且在店铺营业时间结束后仍然聚集,就会构成聚众扰乱公共场所秩序。若4S店报警,求助治安管理部门协助解决本次事件,治安管理部门可能会对"闹事"最严重的"首要分子"进行行政处罚。因此,在这种事件中,如果消费者与商家无法达成一致,可通过法律手段解决问题,而不应"感情用事"。

  在日常生活中,难免会有各种笔误和口误。法律并不会苛责犯下无心之失之人,反而会惩罚为贪图"小便宜"不择手段的人。虽然故事的结尾以4S店捐赠一辆汽车收尾,平息了这次风波。但是,如果4S店的危机处理方式再成熟一些,在"危机"刚发生的时候,首先寻求律师的帮助,提供专业的法律意见,是不是这一辆汽车的损失就可以避免了呢?

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