“CISG”상의 금전손해배상에 관한 연구* －제74조를 중심으로－

Abstract

This paper has focused on how “CISG” art 74 work in real cases. The provision has two parts in effect. The first part is about how one party is compensated as a consequence of the breach by the other party under the contract. The goal of this provision is to place the aggrieved party in the same position it would have been in had the contract performed. Therefore, the losses of the aggrieved party might be any consequence caused by the breach of contract. The second part plays a role to limit damages under the rule of “foreseeability”. In order to analyse damages, losses are mostly classified based on their characteristics. Largely, they may be divided into “direct loss”, “incidental loss”, “consequential loss”, and “lost profits”. “Direct loss”is measured by “the difference between the value to the injured party of the performance that should have been received and the value to that party of the performance that should have been received and the value to that party of what, if anything, actually was received. “Incidental loss” can be considered additional costs in an attempt to avoid further loss. “Consequential loss” might be economic loss from dealing with third parties. On the other hand, lost profit is described by the art 74 without direct and clear definition and guideline. Above all of losses and profits are not subject to damage awards. They are awarded only after they go through a certain filter, namely foreseeability. Such damages may not exceed the loss which the aprty in breach foresaw or ought to have foreseen at the time of the conclusion of the contract, in light of the facts and matters of which he then knew or sought to have known, as a possible consequence of the breach. In addition, the civil procedure matter plays a role to limit contractual liability in measuring damages. A rule of certainty is likely to make plaintiff burdened to prove what real losses are in a certain level. In particular, it is not easy to prove what profits are that an aggrieved party has expected in making a contract. It is likely that “direct loss” and “lost profits” are foreseeable consequence from breach of contract. However, it is unlikely that plaintiff proves what profits in damages are in a certain level. It is easy to prove what “incidental loss” and “consequential loss” are in a certain leveal because they are mostly likely expenses that plaintiff already paid or used. They are mostly likely foreseeable consequence from breach of contract. Depending on proving foreseeability and certainty, kinds of losses or profits can be differently calculated as damages for the aggrieved party. In conclusion, this paper has tried to explain on detail how the art. 74 could work in real cases.