채무불이행과 구체적⋅추상적 손해산정

Concrete and Abstract Assessment of Loss Caused by a Breach of Contract

The creditor’s loss caused by breach of contract should be, in principle, measured by concrete way. Where the creditor has terminated for fundamental non-performance and has made a reasonable cover transaction, he or she can claim the damages of the difference between the price of the terminated contract and the price of the cover contract. What should be compared are the values of what would have been payable under the terminated contract and the value of what is payable under the substitute contract. The values should be calculated at the time of the substitute contract. The creditor s loss can also be measured by abstract way. If the creditor is entitled to damages, he or she can claim damages of the difference between the price of the terminated contract and the market price. The assessment of damages on the basis of a cover transaction or a market price is possible in all the legal systems; The rule of concrete and abstract assessment of damages applies to the damages of a buyer as well as a seller. Though not provided in the legislation, the assessment of damages on the basis of a cover transaction or a market price is admitted in Korea. However, there are some problems to apply these rules to the buyer s breach of contract. According to Art. 397 Korean Civil Code and the prevailing view in Korea, when payment of sum of money is delayed. the creditor including a seller is entitled to interest on that sum of money but may not in addition recover damages for any further loss. Only when the seller can claim damages for any further loss than interest, he or she can recover damages measured by abstract or concrete way. Another problem is that, when the buyer can not accept or refuses to accept the performance, the seller can not terminate the contract and recover damages, because the incapability or refusal to accept performance in itself is not a breach of contract. If the buyer’s incapability or refusal to accept performance is a breach of contract, the seller can terminate the contract and claim damages by abstract or concrete way.