[상품대금반환][집14(2)민,099]
Cases where, by nature, it is not possible to defend simultaneous performance even if the obligation is related to simultaneous performance.
In light of the nature of the obligation related to simultaneous performance, it shall be the case where it is impossible to defend simultaneous performance even if it is a obligation.
Article 536 of the Civil Act
Plaintiff
Defendant
Daegu High Court Decision 65Na222 delivered on March 18, 1966
The part against the plaintiff in the original judgment shall be reversed, and the case shall be remanded to the Daegu High Court.
We examine the grounds of appeal by the Plaintiff’s attorney.
According to the facts established by the original judgment, the plaintiff in Busan City purchased 100 dollars from the defendant who runs the business of selling and selling grain, etc. and selling them at the same time as of May 10, 1964, and paid the price, the plaintiff's goods received at the plaintiff's shop and inspected their quality, making it impossible to use them for solvents because it has been deteriorated due to fluoral or flood, etc., so that it can not be used, that is, the date of receipt, it was notified to the defendant, that it was the date of receipt, that it was requested to receive such wheat from the date of receipt, and that he would be able to deliver them again at the same time and at the same time. However, since the defendant refused to comply, the contract was cancelled, and the plaintiff kept it in the warehouse in that store until now, and the defendant refused to receive it.
Therefore, even though the above obligation to return the price and the obligation to return wheat on the rescission of the sale and purchase contract are in a concurrent performance relationship, in its nature, the defendant who continues to refuse to receive the wheat on the plaintiff's claim for return of the price, cannot assert simultaneous performance. However, without any decision on this issue, the original judgment only issued against the defendant (it is evident that the plaintiff's objection to simultaneous performance was raised by the defendant) and ordered the plaintiff to receive the above wheat 100 cents from the plaintiff, and pay the plaintiff the price at the same time, and it is not possible to avoid any error by misapprehending the above legal principles.
Therefore, the argument of the theory of lawsuit that points out this point is reasonable, and it is so decided as per Disposition by the assent of all participating judges, that the part against the plaintiff in the original judgment is reversed, and it is so decided as per Disposition by Article 406 of the Civil Procedure
[Judgment of the Supreme Court (Presiding Judge) Na-man (Presiding Judge)