권리의 하자를 이유로 하는 담보책임의 성질

This article attempts to analyse the seller’s liability owing to a defect in title (Rechtsmangel) as it is codified in the Korean Civil Code. Its main concern is to clarify the policy grounds on which its rules are based and its relation to the debtor’s contractual liability regime in general. The author starts his analysis from presupposing that this kind of discussion may not be automatically deduced from the theories concerning the seller’s liability owing to the object’s defect in quality (Sachmangel). According to the author’s account, the seller’s liability owing to a defect in title is based on her guarantee that the object legally belongs to her unencumbered. So the Civil Code presumes the seller’s guarantee by way of a legally sanctioned normative interpretation of contract, not least dependent on some relevant circumstances, e.g. the buyer’s knowledge of the defect. The seller is therefore responsible for a defect in title regardless of her fault. This analysis makes it possible to comprehend the seller’s liability as a form of the general contractual liability applied to her duty to transfer the object’s title unencumbered. As a result, it also becomes evident that the constructions suggested for the seller’s liability owing to a defect in quality are not meaningful for understanding her liability owing to a defect in title.