CISG에서 본질적 계약위반에 대한 몇 가지 쟁점사항에 대한 고찰

Article 25 of the CISG defines “fundamental breach”, which is referred to in various provisions of the CISG such as Article 46(2), Article 49(1), Article 51(2), Article 64(1), Article 70, Article 72(1), Article 72(2), Article 73(1), and Article 73(2). Fundamental breach is a prerequisite for the avoidance of a contract. Fundamental breach requires a breach of an obligation and detriment to the other party, and has brought various issues. This paper reviews foreseeability of the detriment as a factor, late delivery, non-conformity of the goods, and action preparatory to payment of the price with regard to fundamental breach. The foreseeability of the detriment gives a subjective ground for excusing the party in breach. However, unlike ULIS Article 10, CISG Article 25 does not have explicit provision concerning the time of foreseeability although the time of the conclusion of a contract is prevailing. Late delivery or late payment does not itself constitute fundamental breach. However, where timely delivery or timely payment is essential in the contract, late delivery or late payment shall constitute fundamental breach. Where the goods delivered is defective or does not conform to the contract, the buyer can avoid the contract if the defect or non-conformity constitutes fundamental breach. Courts have not admitted fundamental breach where the defective goods are resalable.