UN 통일매매법상 ＂중대한 계약위반＂의 개념 및 그 유형에 대한 일고

Abstract

【Abstract】 A Study on the Concept of "Fundamental Breach" in CISG Lee, Jae Mok In Article 25 the Vienna Convention 1980 defines "fundamental" breach of contract and is a prerequisite of powerful remedies like the avoidance of contract or the buyer's right to require delivery of substitute goods. Article 25 is a key article because the remedies of the buyer and seller under CISG turn on the character of the breach involved. It sets out the conditions under which the aggrieved party can make use of these remedies. Therefore, the concept of "fundamental" breach is a central concept in the Convention's system of remedies. The distinction between "non-fundamental" and "fundamental" breach, as defined in Article 25, becomes of major importance in CISG. Because the distinction between "fundamental" and "non-fundamental" breach is of major importance since different remedies are available. But this provision has been criticized, because it does not give a clear definition of fundamental breach. Unfortunately, the definition in Article 25 is not sufficiently clear and open to various interpretations. In my view, it is not possible to draft a more specific definition of a fundamental breach since it is simply meant to describe a very serious breach and has to be drafted in general terms. All in all, it seems that the notion of a fundamental breach itself is very important and necessary to satisfy the needs of international trade. On the other hand, the notion of a fundamental breach is very difficult to determine in detail and, until a uniform case law has been established, may cause uncertainties to the parties to an international sales contract. But, by including specific provisions in their contracts, parties to international sales contracts can easily avoid many of these uncertainties.