계약체결상 과실책임에 관한 법리의 재론

The Theories on the Liability of Culpa in Contrabendo

The liability of Culpa in Contrabendo in Civil Act is one type of Article 535. In a case where a contract, whose objective is unattainable, is concluded, a party to the contract who was aware of, or should have been aware of such unattainability, shall be liable for damages suffered by the other party who relied upon the contract as valid: Provided, That the amount of damages to be recovered may not exceed the profit which would have occurred if the contract was valid. But a party shall not be liable for damages in a case where the other party was aware of, or should have been aware of such unattainability. I examined the consideration of the legal system on the liability of Culpa in Contrabendo, and demonstrated how Trust and Good Faith affects it; Trust and Good Faith shall apply to the primary impossibility of contract. And I focused that Trust and Good Faith shall not only apply to a basis of contract but also to before and after of contract. I propose to generalize Article 535; In a case where a contract, a party to the contract who was aware of, or should have been aware of nullity, shall be liable for damages suffered by the other party, who relied upon the contract as valid, should not have been aware of nullity.