Whether it can be readily concluded that the buyer clearly expressed his/her intention to perform his/her obligation by asserting that the buyer was paid in full by offsetting other opposing claims against the seller (negative)

In the case of a bilateral contract, when one of the parties has expressed his/her intention not to perform his/her obligation in advance, the other party may rescind the contract without demanding the performance of his/her obligation or providing the performance of his/her own obligation. However, such expression of intention should be determined by comprehensively examining the behavior of the parties to the contract and the specific circumstances before and after the contract. As such, it cannot be readily concluded that the buyer asserts that the remaining amount of the purchase price was paid as a set-off against other opposing claims against the seller and demanding the performance of the transfer of ownership registration alone is insufficient to readily conclude

Articles 105, 492, 543, 544, and 563 of the Civil Act

Supreme Court Decision 75Da739 delivered on April 27, 1976 (Gong1976, 9129) Supreme Court Decision 91Da23103 Delivered on November 26, 1991 (Gong1992, 286) Supreme Court Decision 92Da9159 Delivered on August 24, 1993 (Gong1993Ha, 2571) (Gong196Ha, 2658) Supreme Court Decision 96Da17738 Delivered on July 30, 1996 (Gong196Ha, 2658)

Plaintiff

Defendant 1 and two others (Law Firm Mag, Attorney Park Jong-tae, Counsel for the defendant-appellant)

Seoul High Court Decision 99Na55 16 delivered on July 20, 2000

All appeals are dismissed. The costs of appeal are assessed against the Defendants.

The grounds of appeal are examined.

1. According to the reasoning of the judgment below, the court below acknowledged the fact that the plaintiff paid 11,00,000 won to the defendant 1 as part of the balance of the sales contract of this case on February 27, 1984, 200,000 won on August 14 of the same year, 3,000,000 won on September 6 of the same year, and 5,000,000 won on November 7 of the same year. It is reasonable in comparison with the records, and there is no error of law of misconception of facts due to incomplete deliberation or violation of the rules of evidence as otherwise alleged in the ground of appeal.

2. In a bilateral contract, when one of the parties expressed an intention not to perform his/her obligation in advance, the other party may rescind the contract without demanding performance or providing for the performance of his/her own obligation. However, such expression of intent should be determined by comprehensively examining the parties’ behavior and specific circumstances before and after the contract (see, e.g., Supreme Court Decisions 91Da23103, Nov. 26, 1991; 96Da17738, Jul. 30, 1996). Even if there remain part of the purchase price, it cannot be readily concluded that the buyer was aware that the buyer had not intended to perform his/her obligation by means of offsetting other opposing claims against the seller, while demanding the buyer to perform the transfer of ownership registration alone cannot be readily concluded that the buyer had expressed his/her intent not to perform his/her obligation (see, e.g., Supreme Court Decisions 75Da739, Apr. 27, 1976; 92Da9159, Aug. 24, 1993).

According to the reasoning of the judgment below, the court below acknowledged that the plaintiff entrusted the management of the land, etc. of this case to defendant 1 from 1984 to 1985, and since the land of this case was a reclaimed land, it did not cultivate for 1984 because it was high salt, and even in 1985, defendant 1 provided a lawsuit to the non-party 1 and the non-party 2 with 10,000 square meters respectively according to the plaintiff's delegation, but since most of the rice abandonment were dead, and since it was salted, the plaintiff did not collect the tenant's fee because most of the rice abandonment were dead, and since the defendant 1 notified the plaintiff of the payment of the balance of the sales contract of this case, the plaintiff expressed his intent to offset the plaintiff's claims related to the above payment of the balance and the plaintiff's tenant's claim, the plaintiff's above set-off cannot be recognized as valid, but in light of the above circumstances, the plaintiff and the defendant 1 provided the defendants's opinion that it was not unlawful in the plaintiff's opinion as to discharge of the above claim.

3. Therefore, all appeals are dismissed and all costs of appeal are assessed against the Defendants who have lost them. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cho Cho-Un (Presiding Justice)