CISG상의 대체물인도청구권에 관한 고찰 (A Study on the Right to Require Delivery of Substitute Goods under CISG)

서지정보

· 발행기관 : 국제거래법학회
· 수록지 정보 : 국제거래법연구 / 21권 / 1호 / 49 ~ 77페이지
· 저자명 : 송양호

초록

This paper examines the buyer’s right to require delivery of substitute goods under the United Nations Convention on Contracts for the International Sale of Goods (CISG). Because CISG provides that a buyer should fulfill some requirements in order to exercise his right to require delivery of substitute goods, and that such right cannot be revoked once exercised, it involves important issues about the effect and liability. As CISG has some provisional loopholes with regard to the right to require delivery of substitute goods, it needs interpretation and supplement in the dispute resolution process. Therefore, this paper attempts to accurately interpret these loopholes related with the right to require delivery of substitute goods.
The delivery of substitute goods should be allowed within the very strictly limited scope because it takes a considerable time and expenses for the seller. Moreover, a request for substitute goods should be understood not to avoid a contract but as a remedy for breach maintaining the contract.
This paper deeply discusses what extent of the lack of conformity constituted a fundamental breach of contract and whether article 28 of CISG can be applied to a request for substitute goods. It further examines relationship with seller’s right to cure, the right to require to remedy the lack of conformity by repairing and requiring a fundamental breach of contract. It also analyses following contents: a possibility of exercising the right to require delivery of substitute goods when goods or right do not conform with the contract; problems of article 81 through article 84 which are equally treated with the effect of avoidance of contract; the possibility of making restitution of the goods, liability of small modification of the goods being restituted before/after exercising the right to require delivery of substitute goods; place and expense of restitution.
In conclusion, it seems that a buyer prefers the cancelation of contract to the right to require delivery of substitute goods remedy for the lack of conformity with the contract. It means when the goods delivered are not in conformity with the contract in the international sale of goods, a buyer ends the contract through the avoidance of contract rather than keeps the contract through exercising the right to require delivery of substitute goods.

영어초록

This paper examines the buyer’s right to require delivery of substitute goods under the United Nations Convention on Contracts for the International Sale of Goods (CISG). Because CISG provides that a buyer should fulfill some requirements in order to exercise his right to require delivery of substitute goods, and that such right cannot be revoked once exercised, it involves important issues about the effect and liability. As CISG has some provisional loopholes with regard to the right to require delivery of substitute goods, it needs interpretation and supplement in the dispute resolution process. Therefore, this paper attempts to accurately interpret these loopholes related with the right to require delivery of substitute goods.
The delivery of substitute goods should be allowed within the very strictly limited scope because it takes a considerable time and expenses for the seller. Moreover, a request for substitute goods should be understood not to avoid a contract but as a remedy for breach maintaining the contract.
This paper deeply discusses what extent of the lack of conformity constituted a fundamental breach of contract and whether article 28 of CISG can be applied to a request for substitute goods. It further examines relationship with seller’s right to cure, the right to require to remedy the lack of conformity by repairing and requiring a fundamental breach of contract. It also analyses following contents: a possibility of exercising the right to require delivery of substitute goods when goods or right do not conform with the contract; problems of article 81 through article 84 which are equally treated with the effect of avoidance of contract; the possibility of making restitution of the goods, liability of small modification of the goods being restituted before/after exercising the right to require delivery of substitute goods; place and expense of restitution.
In conclusion, it seems that a buyer prefers the cancelation of contract to the right to require delivery of substitute goods remedy for the lack of conformity with the contract. It means when the goods delivered are not in conformity with the contract in the international sale of goods, a buyer ends the contract through the avoidance of contract rather than keeps the contract through exercising the right to require delivery of substitute goods.

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