國際動産賣買法(CISG)上 損害賠償에 관한 小考－ 특히 PICC, PECL과의 比較를 中心으로 －

Abstract

Demeges in CISGSha, Dong-CheonDamages for breach of contract by one party consist of a sum equal to the loss, including loss of profit, suffered by the other party as a consequence of the breach. The rule that in general both the loss suffered by the promisee and his loss of profit are to be compensated expresses the principle of full compensation. But, the liability to pay damages is limited generally to the loss which the party in breach foresaw or ought to have foreseen at the time of the conclusion of the contract, in the light of the circumstances of which he then knew or ought to have known, as a possible consequence of the breach of contract. The party damaged has to only the loss and that it was caused by the breach, whereas the party in breach has to prove that the loss was unforeseeable. The party in breach ought to pay damages unforeseen, unless he prove hat the loss was unforeseeable.Where the contract has been avoided, both parties are released from any future performance of their obligations and restitution of that which has already been delivered may be required. Therefore, the buyer would normally be expected to purchase substitute goods or the seller to resell the goods to a different purchaser. In such a case the measure of damages could normally be expected to be the difference between the contract price and the resale or repurchase price as is provided under article 75.A party who relies on a breach of contract must take such measures as are reasonable in the circumstances to mitigate the loss, including loss of profit, resulting from the breach. If he fails to take such measures, the party in breach may claim a reduction in the damages in the amount by which the loss should have been mitigated.If a party fails to pay the price or any other sum that is in arrears, the other party is entitled to interest on it, without prejudice to any claim for damages recoverable under article 74.