국제물품매매에서의 위험의 이전- 특히 매도인의 계약위반과 위험이전에 대하여 -

In case there is loss or damage to the goods while in storage or transit after the risk has passed to the buyer and if, prior to such loss or damage, there was any breach of contract by the seller, article 70 provides that if the seller has committed a fundamental breach of contract, risk passage rules(articles 67, 68 and 69) do not impair the remedies available to the buyer on account of the breach under the UN Convention on Contracts for the International Sale of Goods. That is, when the breach(nonconformity) is fundamental, the buyer may declare the contract avoided(article 49(1)(a)), and require delivery of substitue goods(article 46(2)), and exercise other remides available to him, and when the breach(delay in delivery) is fundamental, the buyer may declare the contract avoided (article 49(1)(a)), and exercise other remides available to him. This is because prior to the risk passage, the seller has committed a fundamental breach of contract, which makes the risk pass back to the seller retrospectively, and as a result the seller is not liable for the loss or damage to the goods while in storage or transit. But this does not mean that if the breach by the seller does not amount to a fundamental one, risk passage rules impair the remedies available to the buyer on account of the breach and in such a case the buyer may exercise remides available to him. And even though the breach(delay in delivery) is not fundamental, if the seller does not deliver the goods within the additional period of time fixed by the buyer in accordance with the paragraph (1) of article 47 or declares that he will not deliver within the period so fixed, article 70 may be applicable, and as a result risk passage rules do not impair the remedies available to the buyer on account of the breach involving avoidance(article 49(1)(b)).