미국 계약법의 사정변경 법리

Abstract

The similar terms to the Korean doctrine of change of circumstance may be impossibility, impracticality of performance, and frustration of purpose in American Contract Law. The impossibility of performance may be explained as the largest category of frustration of purpose. The impossibility of performance means a physical impossible performance. In contrast, the impracticability means that a promisor is still able to perform what the promisor had undertaken, it has become very hard for her or him to perform in reality, after occurrence of unforeseeable supervening events. Generally, the doctrine of impracticability of performance may work for parties who are bound to furnish goods or services, while the doctrine of frustration of purpose may work for parties who are to pay money in return for those performances. The common law courts were less receptive to claims of excuse based on supervening events after parties had made their contracts than they were to claims of excuse based on facts that already existed when the parties had made at the time of their agreements. However, there had been three significant exceptions. From the second half of the 19th century common law courts developed the doctrine of frustration. At first it was put in the language of an ‘implied term’ in contracts. The contracting parties must have intended that their contract would no longer bind them if it became impossible to perform. The cornerstone of the doctrine of frustration of purpose is the English case of Krell v. Henry. In 1903 the Court of Appeal held for Henry on the ground that his duty to pay had been discharged because the coronation procession was the foundation of their contract, and the object of the contract was frustrated by the non-happening of the coronation and its procession on the days proclaimed. The American Uniform Commercial Code does not provide an express article concerning the doctrine of frustration of purpose. However there is no doubt that the doctrine of frustration of purpose would be applicable into sale contracts. The first and second American Restatement of Contracts provide the doctrine of frustration of purpose. The effect of impracticability and frustration of purpose discharge parties from remaining duties of performances. This article consists of four parts. In II, this author mentions concepts and historical aspects of the American doctrine of change of circumstance, and then explains impossibility of performance. In III, this author looks into the requirements of impracticability of performance and of frustration of purpose. In IV, this author examines the effects of impracticability of performance and of frustration of purpose. Finally this author attempts to propose what the American doctrine of impossibility, impracticability of performance, and frustration of purpose may provide for Korean Contract Law.