국제물품매매계약에 관한 협약(CISG) 제79조와 부적합물품의인도

This paper examines the legal treatment of delivery of nonconforming goods under the Article 79 of the United Nations Convention on the Contracts for the International Sale of Goods(“CISG”). The Article 79 provides that a party may be exempted from liability for damages resulting from the party’s failure to fulfill a contractual obligation. The provision establishes the concept “impediment” as a requirement for the exemption and it makes a contracting party exempted from contractual liabilities in exceptional circumstances where his non-performance or defective performance was due to an impediment beyond his control which he could not reasonably have been expected to take into account. Whether the exemption clause is applied to the case of delivering nonconforming goods is relevant to the extent to which the seller’s liability could be excused under the CISG based on strict liability or no-fault liability. In other words, it gives us an implication for defining the scope of limiting strict liability under the CISG. Eventually, this problem is placed on the intersection between fault-based liability and strict liability. Generally, the scholarship from common-law jurisdictions tends to exclude the possibility that the seller’s liability for non-conforming goods could be excused under the Article 79, concerning that judges or arbitrators easily allow sellers to escape their liability through proving no-fault. In contrast, other scholarship – mainly from civil law jurisdictions – argues that non-conforming goods are subject to an impediment to the seller’s obligations to deliver conforming goods under the CISG Article 35 and it amounts to a seller’s failure to perform any of his obligations under the CISG Article 79. Thus, a breach of the obligation to deliver conforming goods may be excused under the Article 79. Among these debates, it is worth noticing recent approaches arising from the CISG-AC and courts, which implies how to deal with the non-conforming goods under the Article 79. Of course, these approaches do not put an end to the non-conforming goods debates, but they provide a basis for balancing strict liability and fault-based liability in the CISG.