CISG상의 매도인의 본질적 계약위반에 관한 최근의 사례 고찰
A Study on the Recent Cases of Seller’s Fundamental Breach in CISG
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CISG Article 25. A breach of contract committed by one of the parties is fundamental if it results in such detriment to the other party as substantially to deprive him of what he is entitled to expect under the contract, unless the party in breach did not foresee and a reasonable person of the same kind in the same circumstances would not have foreseen such a result. This concept is fundamental to the Conventions remedy system. For it appears several times throughout the following chapters with regard to various remedies of buyer and seller(avoidance-Articles 49(1)(a), 51(2), 64(10(a), 72(1), 73(1), and (2) ; delivery of substitute goods-Article 46(2)) as well as to the passing of risk (Article 70). The term is further classified by considering its purpose. The purpose simply is, in exceptional cases, to allow avoidance, to allow delivery of substitute goods or to prevent the risk of loss from passing to the buyer. Referring to Seller’s obligations, the Goods are fit for the contract and delivered in time to the buyer. There are vital importances to the Seller’s Fundamental Breach. Article 35. (1) The seller must deliver goods which are of the quantity, quality and description required by the contract and which are contained or packaged in the manner required by the contract. (2) Except where the parties have greed otherwise, the goods do not conform with the contract unless they : (a) are fit for the purpose for which goods of the same description would ordinarily be used ; (b) are fit for any particular purpose expressly or impliedly made known to the seller at the time of the conclusion. Article 33. The seller must deliver the goods : (a) if a date is fixed by or determinable from the contract, on that date ; (c) in any other case, within a reasonable time after the conclusion of the contract. For the understanding of meaning of Fundamental Breach, we shall constantly study the cases referring to.
Abstract
CISG Article 25. A breach of contract committed by one of the parties is fundamental if it results in such detriment to the other party as substantially to deprive him of what he is entitled to expect under the contract, unless the party in breach did not foresee and a reasonable person of the same kind in the same circumstances would not have foreseen such a result. This concept is fundamental to the Conventions remedy system. For it appears several times throughout the following chapters with regard to various remedies of buyer and seller(avoidance-Articles 49(1)(a), 51(2), 64(10(a), 72(1), 73(1), and (2) ; delivery of substitute goods-Article 46(2)) as well as to the passing of risk (Article 70). The term is further classified by considering its purpose. The purpose simply is, in exceptional cases, to allow avoidance, to allow delivery of substitute goods or to prevent the risk of loss from passing to the buyer. Referring to Seller’s obligations, the Goods are fit for the contract and delivered in time to the buyer. There are vital importances to the Seller’s Fundamental Breach. Article 35. (1) The seller must deliver goods which are of the quantity, quality and description required by the contract and which are contained or packaged in the manner required by the contract. (2) Except where the parties have greed otherwise, the goods do not conform with the contract unless they : (a) are fit for the purpose for which goods of the same description would ordinarily be used ; (b) are fit for any particular purpose expressly or impliedly made known to the seller at the time of the conclusion. Article 33. The seller must deliver the goods : (a) if a date is fixed by or determinable from the contract, on that date ; (c) in any other case, within a reasonable time after the conclusion of the contract. For the understanding of meaning of Fundamental Breach, we shall constantly study the cases referring to.
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