계약체결상의 정보제공의무와 매매목적물의 하자에 관한 설명의무 - 독일민법상의 하자에 관한 매도인의 정보제공의무를 중심으로 -

Abstract

One cannot overemphasize about impotance of information in not only legal field but also any other fields. Especially party to a contract take all the risks in collecting and analyzing the various information so that he can have a better position in entering a contract. However, principle of responsibility for faults is main ideas of principle of private autonomy. However, there is unbalance of information in contractual parties so it became necessary to protect the weaker party "in information", and it is known as a duty to provide information. This paper examines grounds, elements, and effects of the general duty to provide information and reviews whether a seller owes a duty to provide the defects of the subject matter of a contract especially relating to a contract for sales focusing on the amended German civil law. As a result, it conclued that since a seller does not owe a duty to examine the subject matter of a contract, therefore, one should admit a duty provide information or inform as narrow as possible. This is consistent with the interests of parties of a contract. According to the German law, it surely relates the liability for warranty with the liability of non-performance, but it does not mean that a seller owes a duty to reveal or provide information on the defects. It is not that a seller owes a duty to inform the defects without any limitation but he owes a duty to inform the circumstances or situations which can meaningfully influence on a buyer's decision Korean law for the liability for warranty is not completely correspondent with the German's but the discussion on the liability for warranty and a duty to inform, made under the amended German law, can give us a clue for the analysis and the application under Korean civil law and its amendments.