國際物品賣買契約에 있어서의 履行不能에 관한 硏究

Abstract

The purpose of this paper is to clarify the similarity and difference of U.S Uniorm Commercial Code and Vienna Convention on the commercial impracticability in International Sales Contracts, and is to consider in detail the differences, problems and countermeasures that result from joining in The Vienna Convention, and is to present the docirable form of the method that can conclude transactions without a matter of dispute. The law of each nation coincide in view that is exempt from the responsibility for the nonfulfillment of the obligation owing to the cause or causes for which contracting parties have no responsibility on particular condition. The Vienna Convention established the doctorine avoiding the use of the terms whcih may have other legal meanings, concering the allocation of the risk when the parties ae able to fulfill the performance of the contract due to the impediment in the course of performance which result from the cause for which contracting parties have no responsibility. That is to say, regarding the non performance of the contract owing to the cause for which contracting parties have no responsibility, The Vienna Convention provide it, with dividing if the one's faiure is due to the offer's responsibility and no responsibility. On the Vienna Convention the exemption if possible if the below conditions sufficient. (1) if the failure was due to an impediment beyond his control. (2) if the could not reasonably be expected to have taken the impediment into account at the time of the conclusion of contact. (3) if he could not reasonably be expected to have avoided or overcome the impediment or it's consequences. (4) if the failure was due to on impediment on the other rand, if the party's failure is due to the failure by a third person whom he has engaged to perform the whole or a part of the contrast, that party is exempt from liability only if: (a) he is exempt under the preceding paragraph(§79①): and (b) the person whom he has so engaged would be so exempt if the provision of that paragraph were applied to him. The third person privided by Article 79 ② is the one who was entrusted with the performance of the whole or a part of the contract, but doesn's include the supplier that provided salesman with the goods and raw materials. The party who fails to perform must give notice to the other party of the impediment and its effects on his ability to perform (§79④1). Nothing in this articre prevents either party from exercising any right other than to claim changes under this convention(§79⑤) therefore all relief measures- avoidance of the contract, the demand of performance of contract, and so on-are still permitted. namely the extent of the exemption provided by the first provision is limited in the fifth provision.