보통유럽매매법(CESL)상 매도인의 추완권에 관한 비교법적 검토 - 국제물품매매계약에 관한 UN협약(CISG)과의 비교를 중심으로 -

Abstract

On 11 October 2011, the European Commission published the Proposal for a Regulation of the European Parliament and of the Council on a Common European Sales Law(CESL). It presents an alternative legal regime in the form of an optional instrument available to cross border business-to- consumer(B2C) and business-to-business(B2B) contracts covering goods and their related services. The CESL allows a trader-seller the right to cure any lack of conformity in the goods delivered. In contrast, the consumer-buyer shall be entitled to walk away from the contract immediately upon discovery of a defect, without allowing the seller to cure the conformity(Art. 106 section 2 CESL). During the period of time to carry out such a cure, the buyer may not exercise any remedy that is inconsistent with allowing the seller a period of time to effect a cure. The right to cure within the time allowed for performance (Art. 109 section 1 CESL). The right to cure after the time allowed for performance(Art. 109 section 2 CESL). The buyer may only refuse the offer tocure if: (a) cure cannot be effected promptly and without significant inconvenience to the buyer (b) the buyer has reason to believe that the seller’s future performance cannot be relied on; or (c) delay in performance would amount to a fundamental non-performance(Art. 109 section 2 CESL). Such offer must be made without undue delay on being notified of the lack of conformity. Even though Art. 109 CESL does not define the concept of “cure”it is clear what it means, namely the elimination of non-conformity by the same means that seller may use to remedy non conforming performance, i.e. through repair of defective goods or through replacing them. In fact, Art. 109 CESL is somewhat displaced within the concept of buyer’s remedies at it defines a right of seller rather than a remedys of buyer. The buyer’s remedy that corresponds to the seller’s right to cure is defined in Art. 110 CESL. This article analyzes how the CESL has attempted to treat seller's right to cure. And the analysis in this article compares the conditions under which the buyer’s right to cure under the Art. 48 of the United Nations Convention on Contracts for the International Sale of Goods(CISG).