국제무역거래상 실행곤란성이론에 관한 상학적 고찰

Abstract

The purpose of this study aims to analyse the doctrine of impracticability in international trade transaction with the doctrine of America. In general, the doctrine of impracticability of performance operates to the advantage of parties that are bound to furnish goods, land, services, or some similar performance, while the doctrine of frustration of purpose operates to the advantage of parties that are to pay money in return for those performance. The common law development just described is synthesized in U.C.C. §2-615, Excuse by Failure of Presupposed Conditions. Under that section, except so far as a seller has assumed a greater obligation, delay in performance, in whole or in part, is bot a breach of the seller’s duty. Despite the possible negative inference that might be drawn from the first dozen words, this is a default rule and is often changed by an express provision-commonly called a force majeure clause-excusing the seller in situations not covered by the U.C.C §2-615. Nevertheless, the Code’s synthesis, designed for the sale of goods, has already had a substantial influence on the law of contract generally and has been adapted by the Restatement(Second) of Contracts. Under the new synthesis, the party that claims that a supervening event or contingency prevented performance must meet four requirements. First, the event must have made performance as agreed...impracticable. Second, the nonoccurrence of the event must have been a basic assumption on which the contract was made. Third, the impracticability must have resulted without the fault of the party seeking to be excused. Fourth, that party must not have assumed a greater obligation than the law imposes. Although these requirements involve questions of fact, courts have sometimes been reluctant to entrust the granting of excuse on the ground to a jury.