국제물품매매협약(CISG)상 매수인의 검사의무와 물품부적합 통지의무 -국내외 판례와 중재판정을 중심으로-

Abstract

Article 38 of CISG directs a buyer to whom goods have been delivered to examine them or cause them to be examined. Article 38(1) specifies a general rule that the examination must occur “within as short a period as is practicable in the circumstances.” Article 38(2) provides a special rule for cases involving carriage of goods, permitting the examination to be deferred until the goods arrive at their destination. Under Article 39 of CISG, a buyer who claims that delivered goods do not conform to the contract has an obligation to give the seller notice of the lack of conformity. The provision is divided into two subsections addressing different time periods for the required notice: Article 39(1) requires that notice of lack of conformity be given within a reasonable time after the buyer has discovered or ought to have discovered the lack of conformity; Article 39(2) specifies that, in any event, the buyer must give the seller notice of the claimed lack of conformity within two years of the date on which the goods were actually handed over to the buyer, unless this time limit is inconsistent with a contractual period of guarantee. Both Articles 39(1) and 39(2) state that failure to give the requisite notice results in the buyer losing the right to rely on the lack of conformity. Article 40 relieves the buyer from the consequences of failing to meet the requirements of above articles 38 and 39. The relief provided by Article 40 is available only if the buyer’s failure to meet its examination and/or notice obligations relates to a lack of conformity that is known to the seller, or of which the seller “could not have been unaware.” In addition, Article 44 softens-although it does not eliminate-the consequences suffered by a buyer that has failed to give the notice called for by Article 39(1). Normally, a buyer that does not comply with these notice provisions loses its remedies against the seller for the alleged lack of conformity or third party claim. Under Article 44, however, if a buyer has “a reasonable excuse” for its failure to give proper notice under Article 39(1), some of the buyer’s remedies are restored: “the buyer may reduce the price in accordance with Article 50 or claim damages, except for loss of profit…” However, other remedies that the buyer would have if it had satisfied the notice requirements are not restored, such as remedies associated with avoidance of contract. This paper closely examines the above articles of 38, 39, 40, and 44 by focusing on relevant domestic and foreign cases and arbitral awards because those articles may oftentimes involve in a typical dispute concerning lack of conformity of the goods delivered. There are so many foreign decisions that have dealt with those articles, although there has been only one domestic case reported in which Article 39 was in issue. It is naturally expected that Korean court will have many more cases where the buyer’s duties to examine the delivered goods and to provide a notice of lack of conformity are in issue. Korean court interpreting CISG should take into account relevant foreign decisions because Article 7(1) imposes a mandate to regard the need to promote uniform application of CISG. This paper is written as an effort to provide many useful information in that regard by introducing many foreign decisions and commenting on the reported domestic decision from a critical perspective.