국제물품매매에서 물품적합의무의 본질적 계약위반에 관한 연구

Abstract

Seller’s main obligation in contract for the international sale of goods is to deliver the goods and buyer’s main obligation is to pay the price. Especially seller must deliver goods in accordance with the contract, which means that the goods should not have the defect in two sides. That is to say, they have not the defect in their material side and rightful side. By the way, if parties have expressly agreed the fitness of the goods in contract, they will apply this, but if not, it is problem to decide whether the goods conform with the contract or not. It depends on the governing law in order to solve this problem which is ruled by the international private law, if parties did not expressly agreed this in contract. Therefore I have analyzed the cases of CISG into the seller’s fundamental breach on the fitness of the goods in contract in CISG which have been settled as a governing law of international sale of goods. International commercial transaction is business transaction between the parties whose places of business are in different states or countries. International trade is main subject of this study among a type of international commercial transaction. International sales contract is very important factor of the international trade because the international trade have been formed on basis of parties’ agreement. So essential part for the performance of international trade is to form a contract. Especially, parties must write a sales contract carefully. Because, every step of performance of the contract must follow the content of contract. Also, I have suggest the case study of expressive conformity with the contract at chapter 2. Because Sale of Goods Acts(English) have regarded the fitness of goods as a conditions and warranty in contract, the fitness of goods have focused on the conditions and warranty. But Civil law have focused on the defect of goods, unlike art. 35 CISG. And I have analyzed the case study of implied conformity with the contract fitness of goods at CISG. CISG have substituted the concept of defect for the non-conformance of goods. The non-conformance of goods means that the goods does not expressly or impliedly agree with the quality of contract or CISG. Art. 35 CISG have based on the unified concept of the lack of conformity which contains the non-conformity with the quality as well as lack of conformity of quantity, delivery of different kinds, non-conformity of the package. When we have considered that a notice of the lack of conformity of the goods by buyer is very meaningful in practical transaction business, we need to pay attention to the fact that not only the expressive cases of the lack of conformity of the goods, but also its implied cases are sensitive factors. So I must show that the above cases are separated to be the generally acknowledged cases from the non-acknowledged cases in the seller's fundamental breach of the conformity of the goods in the international sale of goods at chapter 3. I have suggested how to gap-fill. How to gap-fill is to fill out the sale contract in detail. Parties can solve a problem to decide the contract clause if parties write a entire agreement. When you write a sale contract, you must write the contract clearly.