책임제한사유로서의 불가항력과 사정변경

Abstract

This article analyzes contemporary approaches to the scope and content of the principles of exemption for non-performance which are commonly referred to as ‘force majeure’ and ‘hardship.’ The article shows that the ‘general principles of law’ approach addresses this concern most effectively. Generally accepted and understood by the business world at large, this approach encompasses principles of international commercial contracts derived from a variety of legal systems. Its most important ‘restatements’ are found in the 1980 United Nations Convention on Contracts for the International Sale of Goods (CISG), the UNIDROIT Principles of International Commercial Contracts (PICC) and the European Principles of Contract Law (PECL). Establishing specific standards and “case groups” for the exemptions under review, the analysis treats such recurring elements as the following: contractual risk allocations; unforeseeability of an impediment; impediments beyond the typical sphere of risk and control of the obligor; frustration of purpose; comparison with exemptions under domestic legal systems (impossibility of performance, frustration of contract, impracticability). 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 PECL, PICC and DCFR. If one party fails to perform contractual obligations, the other should have an effective remedy. One of the main remedies under the DCFR(PECL, PICC also) 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. 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 impediment beyond the debtor’s control and if the debtor could not reasonably be expected to have avoided or overcome the impediment or its consequences. It lies behind the rule allowing contractual obligations to be varied or terminated by a court if they have become so onerous as a result of an exceptional change of circumstances that it would be “manifestly unjust to hold the debtor to the obligation”. It is the basis of the rule that performance of an obligation cannot be specifically enforced if it would be unreasonably burdensome or expensive. The article may contribute to the development of the use of general principles of the contract law, and it may be used as a comprehensive Understanding on the force majeure and hardship provisions of the PICC, PECL as well as on Art. 79 of the CISG. In addition, an insightful investigation into the fundamental question of the limits of the principle of sanctity of contracts is sure to capture the attention of korean academics.