瑕疵擔保責任과 債務不履行責任의 경합

Is the liability to damages by reason of breach of warranty concurrent with the general non-performance liability of the seller?

When the buyer has the right to damages by reason of seller s breach of warranty by section 580 of the Korean civil code, it is discussed whether besides this right the buyer has another right to damages by reason of non-performance of general obligations which arise from the contract by section 390 of the Korean civil code. This judgment is significant as the first judgment of the Korean Supreme Court that clarify its attitude approving the concurrence of the liabilities to damages for breach of warranty with the general non-performance liability of the seller. The problem of whether the liability to damages by reason of breach of warranty is concurrent with the general non-performance liability or not related with the problem of nature of the liability by reason of breach of warranty. When we understand the nature of the liability by reason of breach of warranty is a liability that the law put on the seller in consideration of parties balance although the seller has fully performed his obligations, the concurrence of the liabilities are out of the question. And also when we understand the nature of the liability by reason of breach of warranty is a kind of general non-performance liability by reason of breach of contract, the concurrence of the liabilities of the seller meets a theoretical problem. Although the theory has many knotty problems, the dominant theories approves the concurrence of the liabilities. I don t think it is reasonable to approve the concurrence of the liabilities when we understand the nature of the liability to damages by reason of breach of warranty is a kind of general non-performance liability by reason of breach of contract. I think that the “damages” in the section 580 of the Korean civil code schuld not be interpreted a damages for loss suffered(including loss of profit), but only schuld be interpreted as damages for diminution of the price. And damages for loss suffered including loss of profit schuld be compensated with the general clause of the non-performance stipulated in the section 390 of the Korean civil code. From this point of view, ① I agree with this judgment in the point that the nature of the liability by reason of breach of warranty is a kind of general non-performance liability, ② but I cannot agree with this judgment in the point that the additional expenses to repair over loss of profits incurred by the buyer can be compensated with the general non-performance liability of the seller. ③ Also I cannot agree with the conclusion of this judgment that the liability by reason of breach of warranty is concurrent with the general non-performance liability.