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서울고등법원 2020.05.21 2019나2057016

계약금반환청구 등

Text

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The purport of the claim and appeal is the purport of the appeal.

Reasons

1. The reasoning of the judgment of the court of first instance citing the reasoning of the judgment citing this case is as stated in the reasoning of the judgment of the court of first instance, except where the judgment on the assertion newly raised by the plaintiff was added to the court of first instance as set forth in paragraph (2). Thus, it shall be quoted in accordance with the main sentence of

2. Determination on addition

A. The Plaintiff’s assertion 1) The Defendant asserted that the grounds for exclusion from the application of the special agreement for exemption arise pursuant to the instant sales contract, and the Defendant has a duty to maintain the registration of ownership transfer regarding the instant sold real estate by the date of the agreement for payment of the remainder. However, prior to the date of the agreement for payment of the remainder, the ownership of 101 units out of the instant sold real estate was lost. Therefore, there is no room to apply the special agreement for exemption from the liability for warranty stipulated under Article 4(5) and (6) of the instant sales contract. Ultimately, the instant sales contract was lawfully rescinded upon the Plaintiff’s declaration of cancellation under Article 576 of the Civil Act.

However, the Defendant did not perform its duty of prior performance, such as the Defendant’s transfer of ownership to 101 units of the instant real estate (the part entrusted to the Defendant by J, the buyer), which was cancelled on March 9, 2017, and did not inform the Plaintiff of the account number to deposit the deposit until the instant sales contract becomes impossible.

As a result, the Plaintiff could not resolve the litigation and the limited rights regarding the instant real estate sales. Therefore, the instant sales contract was lawfully rescinded upon the Plaintiff’s declaration of intent to cancel the contract due to the Defendant’s cause attributable to the Plaintiff.

3. The instant sales contract was rescinded by the Defendant’s rescission due to the Plaintiff’s nonperformance of obligation.