국제물품매매계약에 관한 국제연합협약에서 결과적 손해에 관한 연구

Abstract

The Article 74 of the United Nations Convention on Contracts for the International Sale of Goods is a basic rule defining the general extent of the obligation to pay damages for all cases in which the CISG provides for such an obligation. CISG Article 74 limits the liability to pay damages to the loss which the party in breach foresaw or ought to have foreseen at the time of the conclusion of the contract, in the light of the circumstances of which he then knew or ought to have known, as a possible consequence of the breach of contract. This foreseeability rule can be traced back to an Anglo-American rule initiated by the English Court of Exchequer in Hadley v. Baxendale, 156 Eng. Rep. 145 (Ex. 1854). The foreseeability rule has its greatest relevance in limiting recovery for consequential damages, including loss of profit. Such damages depend on the promisee's particular circumstances, the arrangements he has made, or the surrounding economic framework; in general they are recoverable only if the promisor knew of the relevant circumstances or at least a reasonable person in his position ought to have contemplated them. The foreseeability rule as provided in CISG Article 74 is different in several respects from the Hadely rule as developed through later cases in the common law jurisdictions. First, under CISG Article 74 the foreseeability of the loss must be judged from the view-point of the party in breach, whereas at common law foreseeability is determined by what is in the reasonable contemplation of the parties. In another matter, while CISG Article 74 refers to the foreseeability of damages, the original Hadley rule requires their contemplation. In yet another matter, CISG Article 74 limits recovery to those damages which the party in breach knew or ought to have known as a possible consequence of the breach, while the original Hadely rule limits recovery of lost profits to those that were in the contemplation of both parties, at the time they made the contracts, as the probable result of the breach. This possibly means that the breaching party may be liable for a greater range of consequential damages under the CISG regime than under the common law tradition. These differences, taken together, clearly suggest that it would be erroneous if anyone attempts to interpret or apply CISG Article 74 solely referring to the Hadley rule. In one of the leading U.S. cases applying CISG Article 74, Delchi Carrier SpA v. Rotorex, 71 F.3d 1024 (2d Cir. 1995), a federal court awarded the buyer consequential damages for those costs incurred which were a foreseeable result of the seller's breach and which were both commercially reasonable and reasonably foreseeable. Although the court cited CISG as the controlling law, however, its decision reveals that the court was heavily influenced by domestic legal rules. In order for the CISG to remain a uniform law regulating international transactions of goods, this unfortunate homeward trend should be strongly discouraged, and as CISG Article 7 explicitly demands, CISG should at all times be interpreted autonomously, and not in the light of domestic law.