국제물품계약에 관한 UN협약상의 매도인의 인도기일 이후 치유권에 대한 고찰

Under the CISG, a seller is required to tender goods which are of the quantity, quality and description required by the contract and which are contained or packaged in the manner required by the contract. A delivery of non-conforming goods by a seller constitutes a breach of contract. Goods do not conform to the contract if they are not fit for ordinary use; or they are not fit for the particular use by the buyer which the seller knew of or should have known of; or they do not possess the quality of samples; or they are not properly packaged in a manner usual for such goods. When a seller fails to deliver on time or delivers non-conforming goods, a seller is allowed to cure the performance if it does not cause the buyer unreasonable delay, unreasonable inconvenience or unreasonable uncertainty of reimbursement by the seller of expenses advanced by the buyer. Whether the seller's right to cure prevails over the buyer's rights in these instances will depend on how courts interpret “fundamental breach” and what fact patterns are found to constitute such a breach. The CISG gives the buyer the right to avoid the contract only for a fundamental breach. If, however, “fundamental breach" is defined as an incurable breach or one in which the seller refuses to cure, incorporation of CISG provisions into the terms of the contract may provide the seller with an advantage.