“CISG”에 내재하고 있는 미국법적 요소 분석 - 미국 “UCC”를 중심으로 -

Abstract

The CISG and UCC have the same goal in regulating contractual relation, the pursuit of efficient resolution from contractual disputes. However, it is a little different how to obtain this goal between the CISG and the UCC. It is not easy to find out how the UCC has influenced the CISG rather than how different two contract laws are. This article has focused on how different two contract laws are and how the UCC has affected the CISG instead. In general, like American law, the CISG allows that an offer may be revoked if the revocation reaches the offeree before he has dispatched an acceptance. Likethe UCC, the CISG article 16 also allows an offeror to make an irrevocable firm offer and irrevocable offer based on reliance by the offeree. The UCC allows only a merchant to make an irrevocable offer, a “firm offer” with some restrictions. The CISG rules related to the treatment of modified acceptance is very complicate to compared to the UCC rules. The CISG has followed the common law's mirror-image rule, an acceptance that added to or changed the terms of the offers is considered a rejection and a counteroffer. In practice this resulted in a last-shot rule, with each new form constituting a counteroffer until the last one was accepted by conduct. On the other hand, the UCC regulates that an additional or different term in the acceptance is deemed to be an acceptance. The additional terms in the acceptance may become part of the contract if expressly accepted by the offeror or automatically so long as the offer does not expressly limit acceptance to the terms of the offer, the additional terms do not materially alter the contract, and the offeror does not object to the additional terms. In practice, if the parties act as though there is a contract with disagreed terms, the UCC employs a knock-out rule so that the disagreed terms of the contract are not part of contract. Since Hadley v. Baxendale, the common law and the UCC have limited expectation damages under the foreseeability. The CISG has also followed such limited expectation damages under the foreseeability based on Hadley v. Baxendale. However, the UCC has more specific provisions how to compensate a non-breaching party based on case-by case. These provisions may help the CISG how to seek damages in the breach of contract because of the same background for a damage rule. In this paper, I have tried to find out that the CISG and the UCC are similar to each other by examining the originality of UCC and comparing the CISG and the UCC. In particular, I have founded the similarities from the methods to confirm the intent of a contractor, the legal effect of an offer and a modified acceptance on the form of contract, and the damage rules between the CISG and the UCC. In Korea, the comments on the CISG may be dependent on European resources. For better understanding the CISG, the study on the UCC is more necessary than ever since.