國際物品賣買契約에 있어서 賣渡人의 默示的 品質義務

Abstract

Unless the parties have agreed otherwise, the United Nations Convention on Contracts for the International Sale of Goods(CISG) sets forth the seller’s obligation to deliver conforming goods. The seller’s quality obligations are divided into sub-categories: to deliver goods fit for ordinary use and for particular purposes and to deliver goods free from third party right or claim. There are no established cases nor uniform scholarly opinions with respect to fitness for ordinary use, but we only find the common law ‘merchantability test’, the civil law ‘average quality rule’ and the ‘reasonable quality standard’. It is necessary to establish unified quality standards to promote uniformity in CISG’s application. Without special circumstances the seller would not be responsible for complying with public law provisions of the importing country. There are few cases dealing with goods claimed by a third party based on intellectual property. The further intellectual property is protected, the more disputes in this respect would arise. Article 40 or 43 (2) contains a general principle favoring even a very negligent buyer over a fraudulent seller. The general principle could be applied to third party claims (article 42) as well as non-conformity of goods (article 35). Many courts have concluded that the buyer bears the burden of proving lack of conformity, although they adopt different theories to reach the conclusion. Remedies for the buyer through the seller’s quality obligations would suffer inefficiency due to systematic barriers including transaction costs. This would be inevitable because of ex post nature of the seller’s obligations. We need to explore a legal mechanism for ex ante quality assurance in the phase of production and marketing by providing to the buyer information about quality of goods and differentiating goods in quality in the market. This would be more efficient in controlling quality of goods