보통유럽매매법(CESL)에서의 의사표시 하자규정에 관한 비교법적 검토

After the contract has been concluded, a party may claim that his statementsdeviated from its actual intent. Some deviation may be acceptable; others will beso serious that the law has to limit a contract's binding effect. In making such aclaim, the party may seek one or more remedies, such as release from the contract,or damages. In order to deal with such issues, the proposed Common EuropeanSales Law (CESL) provides for rules on mistake, fraud, threats and unfairexploitation. These rules are dealt with under such heading as 'Defects in consent'. This study concerns the rules on defects in consent in the CESL. This ruleshave to strike a balance between the intention of the parties and their 'objective'meaning for the legal system as a necessary and corrective element, and mayinclude factors designed to protect the reliance of the contractual partner or thirdparties. Article 48 provides for a right of avoidance in case of a relevant mistake. Articles 49 and 50 provide for an avoidance right in the case of fraud and threats. Article 51 relates to the unfairness of the contract. Article 52 states how anavoidance right is exercised. Article 53 is meant to invert the effect of a vitiatedconsent. Article 54 states the legal effects of a valid exercise of a party's avoidanceright. Article 55 provides for damages for a breach of a pre-contractual duty ofgood faith. Article 56 makes clear, that these remedies cannot be validly excludedor restricted. Article 57 gives the affected party the free choice between remediesfor non-performance and remedies that result from a defect in consent.