계약은 얼마나 좌절될 수 있는가? - 사정변경의 원칙에 대한 새로운 패러다임 제시 -

Abstract

The doctrine of ‘frustration of purpose’ in common law, which developed in closely connection with the distribution of risks such as impossibility of performance, contrasts with continental law’s principle of ‘change of circumstances’, which evolved based on the principle of good faith. The requirements for both the doctrine of ‘frustration of purpose’ in common law and the principle of ‘change of circumstances’ in continental law commonly include the occurrence of an event unforeseen by the contracting parties at the time of contract formation, without fault on their part. Despite their very similar content, the different starting points stem from the civil law’s reluctance to terminate a contract entirely due to unforeseen events occurring after its effective formation. In civil law, the tendency to maintain or modify the contract in situations where it becomes difficult to uphold due to significant changes in circumstances, rather than terminating it, can be seen as an unconscious adherence to the notion that ‘contracts must be honored’ or ‘pacta sunt servanda’. The perspective in common law that views the principle of change of circumstances similar to faultless impossibility of performance is largely historical. These differing perspectives on the same phenomenon demonstrate the diverse interpretations and development of legal principles. Through this, the purpose of this paper is to provide an opportunity to newly view the principle of change of circumstances from a broader perspective.