CISG상 매매목적물의 목적적합성(Fitness for Purpose)에 관한 연구 －외국판례 및 중재판정례를 중심으로－

Abstract

According to United Nations Convention on Contracts for the International Sale of Goods (“CISG”), in the absence of an agreement to the contrary, the seller must deliver the goods that fit the purpose thereof. CISG Article 35(2)(b) stipulates that the goods must be fit for any particular purpose made known to the seller except in cases where the buyer did not rely or it was unreasonable for the buyer to rely on the seller’s skill and judgment. Numerous foreign courts have decided that there is no reliance by the buyer on the seller’s skill and judgment if the buyer apparently had more knowledge and experience in the goods than the seller. In cases where a particular purpose is not made known to the seller, the goods must be fit for purposes for which goods of the same description would ordinarily be used (Article 35(2)(a)). In analyzing whether the goods are fit for its ordinary use, continental law countries usually use the average quality standard, whereas Common Law countries use the standard of merchantability. In the Condensate crude oil mix case, however, the Arbitral Tribunal preferred the reasonable quality standard. Numerous foreign courts have the view that the goods do not have to be flawless insofar as it does not lower the value of the goods. Regarding the ordinary purpose of the goods, there is also the question of whether the seller has to observe the domestic laws of the buyer’s country. In the mussels case, the German court has determined that, save for exceptional cases, the buyer is not obliged to comply with the laws of the buyer’s country. This view, however, is inequitable as it shifts to the buyer the risk arising from the discrepancy between the laws of the seller’s country and the buyer’s country.