Mr. Mo never dreamed that because of a loan of only 250,000 yuan, he would lose the gold mine with reserves worth 160 million yuan and all mining equipment. In addition, he was sentenced to pay the other party more than 400,000 yuan in litigation costs. This is tantamount to going bankrupt!
Mr. Mo inherited more than 1,200 acres of gold mining rights in BC inland from his father. The stretch of mountains, the boundless territory at a glance, is full of infinite hope. The geological prospecting report shows that the mining area can make a net profit of 750,000 yuan in half a year, and a net profit of 7 million yuan in five years.
In 2010, after spending more than 800,000 yuan to apply for a mining license and purchase equipment, everything was ready, and only more than 200,000 yuan was needed to add some equipment and labor to make a big splash. Mr. Mo began to raise 250,000 loans. A Mr. Du took the initiative to come to the door. Mr. Du is well-informed and powerful. Mr. Du is willing to provide loans with an annual interest rate of 12%. The two chatted happily and hit it off. Mr. Du also said that he is interested in deepening cooperation in the future, including buying part of the mining rights. Mr. Mo expresses this cautiously, sincerity, take your time.
Mr. Du acted boldly, as long as Mr. Mo said the number, he would write a check immediately. In just one month, more than 160,000 yuan was paid, which solved Mr. Mo’s urgent needs time and time again. Could you ask for a better partner? When Mr. Mo asked for another 50,000 yuan to buy equipment, Mr. Du said that my lawyer said that no matter how good the relationship is, we should make a formal legal document about our business. Mr. Mo was so focused on digging out the gold as soon as possible, so he simply agreed, you can get it if you want.
Mr. Du quickly brought a set of legal documents, including loan agreement, mortgage preservation agreement and IOU. Mr. Mo comes from a business family, and he has borrowed money before, so he knows that these are routine documents in commercial loans. The lawyer wrote dozens of pages of miscellaneous words and sentences. Mr. Mo felt that he knew the basic content, and finding another lawyer to review the documents would not be the same thing. So I took a rough look, confirmed that the interest rate of the loan amount was correct, and signed it with a swipe of a pen.
After the contract was signed, Mr. Du began to ask to intervene in the operation and management of the gold mine, and the relationship between the two took a turn for the worse. Just a few months later, when Mr. Mo received a letter from Mr. Du’s lawyer requesting the immediate repayment of all the loans (more than 300,000 yuan at this time) and the immediate transfer of 50% of the mining rights to Mr. Du, he couldn’t help feeling angry: what? Gotta give me some time to fundraise, too? Besides, it’s only 300,000 yuan, why should I have half of the mining rights? Mr. Du did not say anything else, and directly sued Mr. Mo for breach of the loan contract, demanding performance and compensation.
We have no way of knowing whether it was in court that Mr. Mo knew for the first time what clauses were contained in the document he signed:
- With a loan amount of 250,000, Mr. Du has the right to lend under the amount, and also has the right to lend over the amount;
- Mr. Du has the right to request repayment at any time, and once requested, Mr. Mo must pay off the full amount and interest immediately;
- In addition to the 12% annual interest, Mr. Mo also gave Mr. Du a 50% interest in his mining rights and the right to permanently receive 50% of the net mineral income. If Mr. Du requests to change his name, Mr. Mo must transfer half of the mineral rights registration to Mr. Du.
- Mr. Mo used his own mining rights, equipment and other assets as collateral for the loan, and paid all legal fees related to the performance of the contract.
These conditions are staggered in three documents. Mr. Mo’s lawyer tried his best to find various reasons to overturn those documents. However, the judge ruled that the signing of the contract expressed the agreement of both parties, and the validity of the contract must be maintained. In response to Mr. Mo’s defenses such as not carefully reading the terms and not having an independent law, the judge said in the judgment:
“他如果只是仓促地审阅了文件（他已承认审阅每份协议的时间是5-10分钟），那就是他自己的错。如果他愿意的话，他是有机会审阅文件并向律师咨询的。并没有证据推翻这一点。。。。。。我发现，莫先生有机会请自己的律师审阅借款协议，抵押保全协议和借据。他不愿意支付律师费，所以选择不请律师。”
法官的判决支持杜先生的全部诉讼请求。按照合约，一半的矿权早已归了杜先生。另一半及设备等被杜先生指定的人拍卖。可想而知，一半的矿权还有涉及一个难缠的共有人，感招惹的人自然不多。最终，被杜先生用极低的价格拍下，还不够支付那30多万的借款和诉讼费赔付以及利息。就这样，莫先生的矿和相关的一切资产，都改姓了杜。
这个活生生的案例为我们敲响警钟。近年来越来越多华人积极涉入BC省的各种商业领域。购买企业，开发地产，融资借贷，生意合伙等交易越来越多。我们发现有不少客户法律意识淡漠，对西方法律体系，律师工作的价值及合约的重要性等存在很大理解误区。比如说：
- “我们共同请一位律师最公平” –错！ 谁的律师就必须代表谁的利益。商业交易中的双方是固有的利益冲突，因此同一个律师不能代表双方。
- “律师准备的文件都是模板，千篇一律” –错！每一笔商业交易都有自己特定的背景，条件，协议各方也都有不同的需求，这世上就没有两片同样的叶子。每一笔交易律师都需要大量的时间跟客户沟通，了解所有相关事实才能确保给客户充分的保障。而法律文件里一个小小的不同造成的可能就是天差地别的结果。甚至还有的客户拿着别人的文件以为自己改个名字就能用，这实在是容易聪明过了头反被聪明误。
- “合约简简单单最好，长篇大论没必要” –错！有些客户自以为自己商业经验丰富，知道什么重要，觉得合约里细致的条款都是多余的。却不知合约往往涉及复杂的法律关系和义务，是诸多元素的整合，很多东西都是牵一发动全局的。你真的比专业人士还更知道少了哪片瓦会漏雨吗？
- “我们都谈好了，找律师办个手续签个字就行了”–错！很多时候，谈判中的条件都会牵扯你所不了解的法律风险。律师及早介入，能帮助你及时评估利弊，避免陷入被动。金额较大的交易其实应该在出意向书之前就咨询律师，并且做详尽的尽职调查。而不是等你们都谈好了，木已成舟，亏已注定。
我最怕听到客户说“都是朋友，不会有问题的，你就帮我简单看看就行了”。一听到这句话，我就想说你自己看吧。魔鬼就在细节中。律师不详细了解你们交易的相关情况，怎能全盘考虑？不逐字逐句地仔细阅读推敲合约条款，怎么能履行自己的职责保护好你的利益呢。有些时候也许对方并不是刻意设计你，但是他的律师可能会试图最大化他的利益而写出一些对你极度不公平的条款。你自己如果没看见，或为了省钱没请律师，就可能落得个和莫先生一样的下场。
轻易相信一个为了利益跟自己打交道的人而不信自己的律师，为了节省万把千块的律师费而不请律师，却搞到自己花几十万上百万打官司，最终还落得几百万甚至上千万的损失。前车之鉴，后事之思。望诸君共勉。
——–孙紫涵—–