국제물품매매계약에 관한 유엔협약 상의 물품의 계약적합성에 관한 연구

Abstract

“United Nations Convention on Contracts for the International sale of Goods" (“CISG") distinguishes lack of conformity from nondelivery. Art. 35, as a foundation of the CISG's regime for liability for non- conformity, is designed to stipulate seller's duty to deliver conforming goods and establish which requirements the seller has to meet in order to fulfil his delivery obligation concerning conformity of the goods. The question this paper addresses is how to determine whether goods tendered by the seller conform to the contract when the contract is governed by the United Nations Convention on Contracts for the International Sale of Goods. Its importance in practice results from the fact that most disputes arising from sales transactions relate to whether the goods delivered conform to the contract. Delivery of non-conforming goods, often also referred to as “defective delivery", is in practice by far the most frequent breach of contract. In comparison, the complete failure to deliver any goods, i.e. cases of an actual “non-delivery", are fairly seldom. When the seller's breach consists in the tender of nonconforming good, special duties are imposed on the buyer: The buyer loses the right to reply on the lack of conformity unless timely notice is given to the seller or the lack of notice is reasonably excused. Furthermore, under the Convention on the Limitation Period, the point at which claims accrue -- and the prescription period begins to run -- differs according to whether the action is based on breach of contract, nonconformity, or breach of an express guaranty. The question then arises how (and whether) to distinguish nonconformity from other breach of contract, particularly from the seller's failure to deliver the goods.