계약상 이행책임의 제한 - 유럽계약법 공통참조기준(CFR) 초안을 중심으로 -

Abstract

The Study Group on a European Civil Code and the Research Group on Existing EC Private Law (the 'Acquis Group') present the revised and final academic Draft of a Common Frame of Reference (DCFR). It contains Principles, Definitions and Model Rules of European Private Law. In the paper is discussed about the limits of the duty to performance, e. g. impossibility, force majeure and change of circumstances(hardship). If the parties have concluded a contract freely and with adequate information, then the contract should normally be treated as binding on them unless they agree to modification or termination or, where the contract is for an indefinite period, one has given the other notice of a wish to end the relationship. These rules are set out clearly in the DCFR. If one party fails to perform contractual obligations, the other should have an effective remedy. One of the main remedies under the DCFR is the right to enforce actual performance, whether the obligation which has not been performed is to pay money or is non-monetary, e. g. to do or to transfer something else. The DCFR slightly modifies and supplements this principle by some exceptions as the right to enforce performance should not apply in various cases in which literal performance is impossible or would be inappropriate(Ⅲ-3:301 and 3:302). It is recognised in the rule which regards non-performance of an obligation as excused (so that performance cannot be enforced and damages cannot be recovered) if the non-performance is due to an impedimdimdbeyond the debtor's contro's nd if the debtor could not reasonably be expected to have avoided or overcome the impedimdimdor its consequences(Ⅲ-3:104expectlies behind the rule allowing contractual obligations to be varied or terminated by a court if they have become so onerous as a mpeult of an exceptional become so onerous as a that it would be "manifestly unjust to hold the debtor to the obligation"(Ⅲ-1:110expectis the basictuf the rule that performance of an obligation cannot be specifically enforced if it would be unreasonably burdensome or expensive(Ⅲ-3:302).