CISG상의 손실경감의무에 관한 연구

Abstract

Duty to mitigate loss prescribed in article 77 of the United Nations Convention for the Sale of Goods(here-in-after CISG) originated in the common law system at first but reflected the civil law system as a product of compromise between two systems. Mitigation provision is basically related to a duty of the buyer/seller and with measuring of damages because it lies in the chapter 5 which is entitled 'common to the obligations of the seller and of the buyer', and in the section 2providing 'damages'. That means this duty is intended to promote uniformity in its application and the observance of good faith in international trade in article 7(1). It can be found that the first part of article 77 requires such mitigation and allows a set-off in favor of the breaching party for failure of the non-breaching party to mitigate. And it also provides if he fails to take such measures, the party in breach may claim a reduction in the damages in the amount by which the loss should have been mitigated in the second sentence of article 77. It is meant to precluded an injured party from recovering damages which could have reasonably been avoided damages. So this paper examines how the duty to mitigate is added to a person who claims for damages because article 77 does not have any rule about a violation of the duty by the third party. It also reviews the relationship among the duty to mitigate and the right to require performance, the breach of contract before period of performance and some other breach of contracts. And then this paper thoroughly analyzes what the loss should be reduced is,what the reasonable measures taken for mitigating the damages are and who should pay for the cost of mitigation. Furthermore, it describes the claim of reduction in the damages by the party in breach because article 77 does not provide clearly whether the party in breach should prove the claim of reduction in the damages or the court can exercise it's authority to do so. By examining some issues related with the duty to mitigate loss in detail, this paper intends to make clear the scope of practical use of CISG.