국제매매계약에서 시간경과에 따른 물품의 상태 변화가 해제에 기한 원상회복에 미치는 영향

Abstract

When the buyer has received the goods and intends to exercise the right to declare the contract avoided to reject them, he must take such steps to preserve them as are reasonable in the circumstances in order to make restitution of the goods substantially in the condition in which he received them. The condition of the goods, especially if used, deteriorates. It would be necessary to examine the impacts on the buyer’s power to make restitution which a change of condition would impose. The United Nations Convention on Contracts for the International Sale of Goods provides the retroactive mechanism of restitution as a result of avoidance under the condition that it is possible for the buyer to make restitution of the goods substantially in the condition in which he received them. On the other hand, the Convention grants three exceptions: where the impossibility of making restitution is not due to the buyer’s act or omission; if the goods have perished or deteriorated as a result of the examination of the goods; or where the buyer sells the goods in the normal course of business or consumes or transforms them by normal use. The exceptions are granted, temporally limited, before the buyer either discovered or ought to have discovered the lack of conformity. The time when the buyer declares the contract avoided is also relevant in respect of a change of the condition of the goods. It remains to review whether the buyer’s failure to preserve the goods after making a declaration of avoidance should work to deprive him the right of avoidance by vitiating the avoidance in question. In addition the buyer must account to the seller for all benefits derived from the goods in terms of scope of the restitution. In calculating benefits the reasonable expenses are to be taken into account to avoid the danger of making excessive restitution to the seller. Even where restitution in kind is impossible or inappropriate, it is doubtful for the Convention to stick to the condition of the goods, which would undermine the goal of promoting the international trade. The flexible approach to restitution by allowing allowance in money would have the advantage of avoiding uncertainties inherent to restitution and addressing legal issues of the parties and promoting the international trade. In tandem with this the principle of restitution in kind must be interpreted narrowly and the exceptions extensively. It is time to contemplate an efficiently workable mechanism of restitution promoting international trade by examining the buyer’s duty to preserve the goods from temporal and spatial perspectives.