SGA에서 매수인의 계약해제권에 관한 연구: CISG와의 비교를 중심으로
A Comparative Study on the Right to Avoid the Contract of the Buyer under SGA and CISG
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Purpose - The purpose of this paper is to examine the buyer’s right to avoid the contract under SGA and CISG. Design/methodology/approach - This paper has conducted literature reviews to analyze the right to avoid the contract of the buyer based on the comparative study. Findings - Under s. 11(3) of SGA, the breach of a condition and an intermediate which deprives the buyer substantially of the whole benefit of the contract may give rise to a right to treat the contract as repudiated. But under Art. 49 of CISG, the buyer has the right to terminate the contract where the seller’s failure to performance amounts to a fundamental breach of contract. Regarding the breach of an intermediate and the breach under CISG, the buyer should take into account where the seller’s breach is fundamental or not. Moreover, an anticipatory breach can give rise to a right to avoid the contract. The anticipatory breach of a condition justifies termination. The breach of an intermediate and the breach under CISG require an anticipatory fundamental breach of the contract. Under SGA, the buyer has to prove an anticipatory breach in fact but CISG does not require virtual certainty, which SGA has stricter criteria to assess an anticipatory breach. Research implications or Originality - Comparative study helps to understand the nature of provisions under SGA and CISG and suggests practical advice to choose applicable laws. SGA gives more certainty to classify a contractual term. In case of the breach of a condition including the anticipatory breach under SGA, the buyer does not have to ask how much serious the breach is. But CISG requires the fundamental breach of the contract, which means that the buyer has the more burden of proof compared with SGA.
Abstract
Purpose - The purpose of this paper is to examine the buyer’s right to avoid the contract under SGA and CISG. Design/methodology/approach - This paper has conducted literature reviews to analyze the right to avoid the contract of the buyer based on the comparative study. Findings - Under s. 11(3) of SGA, the breach of a condition and an intermediate which deprives the buyer substantially of the whole benefit of the contract may give rise to a right to treat the contract as repudiated. But under Art. 49 of CISG, the buyer has the right to terminate the contract where the seller’s failure to performance amounts to a fundamental breach of contract. Regarding the breach of an intermediate and the breach under CISG, the buyer should take into account where the seller’s breach is fundamental or not. Moreover, an anticipatory breach can give rise to a right to avoid the contract. The anticipatory breach of a condition justifies termination. The breach of an intermediate and the breach under CISG require an anticipatory fundamental breach of the contract. Under SGA, the buyer has to prove an anticipatory breach in fact but CISG does not require virtual certainty, which SGA has stricter criteria to assess an anticipatory breach. Research implications or Originality - Comparative study helps to understand the nature of provisions under SGA and CISG and suggests practical advice to choose applicable laws. SGA gives more certainty to classify a contractual term. In case of the breach of a condition including the anticipatory breach under SGA, the buyer does not have to ask how much serious the breach is. But CISG requires the fundamental breach of the contract, which means that the buyer has the more burden of proof compared with SGA.
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