민법적 시각에서 본 CISG상의 서식전쟁
A New Point of View in the Conflict of the Battle of the Forms
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To find a solution with regard to the conflict of the battle of the forms is not easy. This is because the commercial practice of sending offers and acceptances that contain general conditions is complicated and its outcomes are contradictory. The first question with regard to the conflict of the battle is whether contract is made and valid despite no all consent with all of contractual terms. The second question follows what the terms of the contract are if the contract is valid. The courts for the answer to the first question is likely affirmative to the validity of contract. However, the answer to the second question may not be affirmative. There are three suggestions to solve the conflict of the battle of the forms. First, when ‘last-shot doctrine’ is applicable, the last person to send his form is considered to control the terms of the contract and therefore the last person wins the battle. Second, when ‘knock-out rule’ is applicable, clauses contained in the forms which are contradictory are excluded and therefore excluded clauses are substituted by the applicable law, usage, or practices. Third, since expressly no provision with regard to the conflict of the battle of the forms is provided in CISG, it is supposed to resolved with the principle by applying general principles upon which the Convention is based. I would like to suggest some tools how to interpret parties’ intents in forms based on traditional contractual views. These suggestions apply situations where parties’ intents for agreement may not be clear. I have suggested that parties’ intents may be classified into overt lack of agreement and hidden lack of agreement. It is reasonable to apply ‘last-shot doctrine’ to overt lack of agreement from the conflict of forms. If hidden lack of agreement can be found, ‘knock-out rule’ is applicable rather than ‘last-shot doctrine’. This distinction is based on CISG article 8 and traditional contractual views. I believe that the situations of the battle of forms are likely to be hidden lack of agreement rather than overt lack of agreement. Hidden lack of agreement is like to be where parties consider to have agreed with all points to comprise a contract, but in fact they have not. In this situation, ‘knock-out rule’ should apply.
Abstract
To find a solution with regard to the conflict of the battle of the forms is not easy. This is because the commercial practice of sending offers and acceptances that contain general conditions is complicated and its outcomes are contradictory. The first question with regard to the conflict of the battle is whether contract is made and valid despite no all consent with all of contractual terms. The second question follows what the terms of the contract are if the contract is valid. The courts for the answer to the first question is likely affirmative to the validity of contract. However, the answer to the second question may not be affirmative. There are three suggestions to solve the conflict of the battle of the forms. First, when ‘last-shot doctrine’ is applicable, the last person to send his form is considered to control the terms of the contract and therefore the last person wins the battle. Second, when ‘knock-out rule’ is applicable, clauses contained in the forms which are contradictory are excluded and therefore excluded clauses are substituted by the applicable law, usage, or practices. Third, since expressly no provision with regard to the conflict of the battle of the forms is provided in CISG, it is supposed to resolved with the principle by applying general principles upon which the Convention is based. I would like to suggest some tools how to interpret parties’ intents in forms based on traditional contractual views. These suggestions apply situations where parties’ intents for agreement may not be clear. I have suggested that parties’ intents may be classified into overt lack of agreement and hidden lack of agreement. It is reasonable to apply ‘last-shot doctrine’ to overt lack of agreement from the conflict of forms. If hidden lack of agreement can be found, ‘knock-out rule’ is applicable rather than ‘last-shot doctrine’. This distinction is based on CISG article 8 and traditional contractual views. I believe that the situations of the battle of forms are likely to be hidden lack of agreement rather than overt lack of agreement. Hidden lack of agreement is like to be where parties consider to have agreed with all points to comprise a contract, but in fact they have not. In this situation, ‘knock-out rule’ should apply.
참고문헌 (28)
- 김대정, "계약법(상)" (2007), 도서출판 피데스
- 김형배, "민법학강의" (2009), 신조사
- "민법주해, 제XII권 채권(5)" (2006), 박영사
- 석광현, "국제물품매매계약의 법리" (2010), 박영사
- 양창수, "계약법" (2010), 博英社
- 김진우, "CISG에서의 약관의 편입통제", 경희법학, 46(2), pp.91~122 (2011), 법학연구소
- 김진우, "CISG에서의 약관의 충돌문제", 국제거래법연구, 20(2), pp.167~194 (2011), 국제거래법학회
- 송경석, "국제물품매매계약에 있어서 서식전쟁에 관한 법리연구", 관세학회지, 6(2), pp.427~442 (2005), 한국관세학회
- "대법원 2001. 3. 23. 선고 2000다51650 판결", ~ (2001)
- "An International Approach to the Interpretation of the United Nations Convention on Contracts for the International Sales of Goods" (1980), John Felemegas ed., Cambridge University Press
- Stewart Macaulay, "William Whitford, and Marc Galanter" (1995), Law in Action
- Ulrich Magnus, "Last Shot vs. Knock Out-Still Battle over the Battle of Forms Under the “CISG” in Commercial Law Challenges in the 21st Century" (2007), Jan Ramberg & Jacob Ziegel
- Ved P. Nanda, "2 Litigation of International Disputes in U.S. Courts § 12:20, Battle of the forms restrained", ~ (2012)
- Peter Schlechtriem, "UN Law on International Sales" (2009), Springer
- DiMatteo, "The Interpretive Turn in International Sales Law : An Analysis of Fifteen Years of “CISG” Jurisprudence", Nw. J. Int’l L. & Bus, 24, pp.299~ (2004)
- Andrea Fejös, "Battle of Forms under the Convention on Contracts for the International Sale of Goods (“CISG”): A Uniform Solution", V. J, 11, pp.113~ (2007)
- John E. Murray, "The Chaos of the ‘Battle of the Forms’ : Solutions", Vand. L. Rev, 39, pp.1307~ (1986)
- Giesela Rühl, "The Battle of the Forms : Comparative and Economic Observations", U. Pa. J. Int’l Econ. L, 24, pp.189~ (2003)
- Charles Sukurs, "Harmonizing the Battle of the Forms: A Comparison of the United States, Canada, and the United Nations Convention on Contracts for the International Sale of Goods", Vand. J. Transnat’l L, 34, pp.1481~ (2002)
- Kevin C. Stemp, "A Comparative Analysis of The “Battle of the Forms”", Transnat’l L. & Contemp. Probs, 15, pp.243~ (2005)
- Perales Viscasillas, "Battle of the Forms and the Burden of Proof: An Analysis of BGH 9 January 2002", V.J, 6, pp.217~ (2002)
- , 2002
- "CSS Antenna, Inc., v. Amphenol-Tuchel Electronics, GMBH 764 F.Supp. 2d 745, 754 (D. Md., 2011)", ~ (2011)
- "Hanwha Corporation v. Cedar Petrochemicals, Inc, 760 F. Supp. 2d. 426 (S.D.N.Y. 2011)", ~ (2011)
- "HOF‘s-Hertogenbosch, C051069", HE, 2007
- "Magellan International Corporation v. Salzgitter Handel GmbH 76 F. Supp. 2d. 919, 925", ~ (1999)
- ’s-Hertogenbosch, , 2007
- "Supermicro Computer, Inc. v. Digitechnic, S.A., 145 F. Supp. 2d 1147, 1151 (N.D. Cal. 2001)", ~ (2001)