M&A 계약에서의 진술 및 보장 조항 위반으로 인한 손해액의 산정 - 대법원 및 하급심 판례 분석을 중심으로 -

While liability for breaches of representations and warranties in mergers and acquisition (M&A) agreements has been widely discussed, there has been a dearth of in-depth analysis regarding the calculation of damages in such context. In the leading case of 2017Da6108, the Supreme Court of Korea defined the liability as a ʻʻliability for breach of contractʼʼ and established principles for calculation of damages in the absence of specific contractual provisions, primarily adopting a ʻʻdiminution in stock valueʼʼ or ʻʻpurchase price differenceʼʼ approach. However, the precise application of these principles remains unclear, thereby leaving uncertainty and unresolved issues in legal practice. This study examines 22 key Supreme Court and lower court decisions concerning damages for representations and warranties breaches and classifies them into three types: (1) cases where a contractual agreement of damage calculation was recognized and applied (Type 1 - 12 cases); (2) cases without a contractual term of damage calculation where the buyerʼs loss was equated with the target companyʼs loss (Type 2 - 3 cases); and (3) cases without a contractual term of damage calculation where an alternative damage assessment approach was applied (Type 3 - 7 cases). Analysis and classification of these cases leads to the following findings. First, in Type 1 cases, the interpretation of partiesʼ intent is critical, including whether in fact such agreement - usually to calculate damages as the target companyʼs loss - exists. Interestingly, existing case law exhibits inconsistencies regarding such interpretations. Second, in Type 2 and 3 cases where a contractual term for damage assessment does not exist, the nature of the breach must first be determined: the initial step is to distinguish between breaches with one-time effects and those with continuing effects. Then, the nature of the breach and calculation of the purchase price should be considered in an interdependent manner; in some cases, expert valuation may be necessary to evaluate the breachʼs financial impact on purchase price calculation. Finally, in Type 2 and 3 cases, it is important to note the risk of under-compensation which necessitates a broader perspective on recoverable damages rooted in the concept of expectation interest. This issue primarily concerns: (i) whether damages should reflect the difference between the ʻʻas-representedʼʼ value (rather than the ʻʻpaid priceʼʼ) and the actual value, and (ii) the consideration of lost profit. A comparative analysis of Delaware case law indicates that its flexible approach to damage calculation allows for recognizing such damages. Yet, any expansion of recoverable damages should be balanced against the doctrine of foreseeability in special damages. Given the complexity of as well as multilayered and mutually-dependent factors in determining damages from breaches of representations and warranties, courts should exercise appropriate discretion in damage assessment.