국제물품매매에서 계약해제의 효과에 관한 고찰

A Study on the Effect of Avoidance of Contracts in International Sale of Goods

Article 81 sets forth the two consequences which result from the avoidance of the contract. As to the future, the parties are released from their obligations. As to the past, they must return what has been supplied or paid under it. The avoidance does not affect and provisions of the contract for the settlement of dispurtes or any other provision of the contract governing the rights and obligations of the parties consequent upon the avoidance of the contract. Article 82 sets forth a limitation of the right to declare the contract avoided when the buyer is unable to return i.e. when physical restitution of the goods has become impossible. Several exceptions to this rule are stated in paragraph (2). The buyer retains the right to declare the contract avoided if the impossibility to restitute the goods. Thus, if goods lacking conformity disappear owing to the buyer’s negligence the latter cannot declare the contract avoided. The buyer would, however, lose the right to declare the contract avoided if it appeared that he were liable for the destruction. The buyer retains the right to declare the contract avoided if the has resold, consumed or transformed the goods, thus rendering physical return impossible. The buyer received or could have received interest up to the date of reimbursement : the seller is therefore accountable for it. Furthermore, the buyer must account to the seller for all the benefits which he has derived from the goods or part of them.