서식의 충돌시 계약 내용의 확정 (Terms of Contract in Battle of the Forms)

서지정보

· 발행기관 : 한국민사법학회
· 수록지 정보 : 민사법학 / 73권 / 161 ~ 221페이지
· 저자명 : 김성민

초록

Traditionally, a contract has been considered to be formed by an offer and an acceptance. However, there are many cases where it is difficult to distinguish an offer and acceptance in an actual transaction, and in particular, where parties exchange various written forms. Parties may perform the contract even when the exchanged forms include discordant terms and conditions. This study focuses on the case where the forms provided by each party include differing terms, known as the ‘battle of the forms’, and suggests ways to establish terms of the contract in domestic contracts as well as international contracts.
There has been some debate as to which principle best resolves the battle of the forms and many commentators have either suggested the “last shot theory” and the “knock-out rule” as the solutions. In domestic contracts, Article 534 of the Civil Code is relevant in interpreting contract. Whether Article 534 would apply or not would depend on particular circumstances. In international contracts, there could be battle of the forms relating to the jurisdiction and choice of law. Also, application of CISG must be considered in sale of goods. The CISG does not contain particular rule on the battle of the forms and thus brings various interpretation on Article 19 of CISG.

영어초록

Traditionally, a contract has been considered to be formed by an offer and an acceptance. However, there are many cases where it is difficult to distinguish an offer and acceptance in an actual transaction, and in particular, where parties exchange various written forms. Parties may perform the contract even when the exchanged forms include discordant terms and conditions. This study focuses on the case where the forms provided by each party include differing terms, known as the ‘battle of the forms’, and suggests ways to establish terms of the contract in domestic contracts as well as international contracts.
There has been some debate as to which principle best resolves the battle of the forms and many commentators have either suggested the “last shot theory” and the “knock-out rule” as the solutions. In domestic contracts, Article 534 of the Civil Code is relevant in interpreting contract. Whether Article 534 would apply or not would depend on particular circumstances. In international contracts, there could be battle of the forms relating to the jurisdiction and choice of law. Also, application of CISG must be considered in sale of goods. The CISG does not contain particular rule on the battle of the forms and thus brings various interpretation on Article 19 of CISG.

참고자료

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