국제통일계약규범하에서 하자담보책임에 관한 비교 연구 - CISG, PICC 및 PECL의 법적 기준과 요건을 중심으로 -

A Comparative Study on the Defects Liability in International Contractual Rules

The provisions in the CISG on the conformity of goods to the sales contract are included in Article 35. Unlike the CISG, the UNIDROIT Principles and the PECL cover not only sales contracts, but also other types of contracts. In Article 7.1.1. of the UNIDROIT Principles, non-performance is defined as a failure by a party to perform any of its obligations under the contract, including defective performance or late performance. The same approach is taken in PECL, see Article 8:101. Although the UNIDROIT Principles and the PECL do not have any rules which directly resemble CISG Article 35, several articles may be used to interpret or supplement the said article. In the following paragraphs, it will be analyzed in which manner articles in the UNIDROIT Principles and the PECL may be used to interpret or supplement the different parts of CISG Article 35. According to Article 35(1) of CISG, the seller must deliver goods which are of the quantity, quality and description required by the contract and which are contained or packaged in the manner required by the contract. As mentioned above, the primary role of the contract is also emphasized in the UNIDROIT Principles Article 7.1.1 and the PECL Article 8:101. Article 5.1.6 of the UNIDROIT Principles provides that is where the quality of performance is neither fixed by, nor determinable from, the contract a party is bound to render a performance of a quality that is reasonable and not less than average in the circumstances. The relevance of this article in the interpretation of CISG article 35(2)(a) is supported by the illustration used in the comment to performance of average quality, which involves the sale of goods. Performance of a quality that is reasonable, the purpose of a reasonableness test is, that a party should not be able to perform what would be an average quality in the buyers market, if this quality is most unsatisfactory in the market of the seller.