매수인의 계약‘편입’의무에 관한 법적 쟁점 － 국제물품매매에 관한 유엔협약(CISG)을 중심으로 －

Abstract

Article 35(1) provides that regard must initially be had to the requirements of the contract. The contractual requirements are determined by reference to Article 8. They may be expressly or even impliedly determined. There is likely to be an implied agreement particularly where reference is made to particular industry standards. The contractual requirements may be individually negotiated, but they may also result from the standard business terms of the seller or of the buyer. Even advertisements of the seller, in which, for example, he refers to particular qualities of the goods, may be taken into consideration in order to determine conformity with the contract under the Article 35(1). Finally, requirements as to the characteristics of the goods, may result from information supplied by the seller under a duty of disclosure. The particular purpose must have been made known to the seller. Unlike under the domestic sales laws of many continental systems, there is no need for the particular purpose to have been contractually agreed upon. ‘Made known’ is therefore less restrictive than ‘contractually agreed upon’. If the seller has been made aware of the state of use for the goods, then he is responsible for the fitness of the goods not only with respect to the actual conditions of use, but also for observance of public law standards. There are no problems if the particular purpose is expressly made known to the seller. If the seller wishes to avoid liability in that regard, he must raise an objection. However, it is sufficient for the particular purpose to have been made known to him implicitly. In that respect, problems are posed by the case where the seller did not recognize the particular purpose, but he should reasonably have done so. It must be sufficient if a reasonable seller could have recognized the particular purpose from the circumstances. Such an interpretation seems to be appropriate for evidentiary reasons, because actual knowledge can only be proved with difficulty. The particular purpose must be made known to the seller at the time of the conclusion of the contract. Subsequent notification is insufficient. To be sure, the buyer is advised to draw special attention to any particular purpose at the time of the contract. This paper purposes to provide the necessity on buyer's duty to incorporate particular standardized terms into a contract under CISG.