[1] Whether Article 69 (1) of the Commercial Act, which is a special provision for a seller's liability for warranty, applies to the claim for damages due to incomplete performance (negative)

[2] In a case where Gap limited liability company claimed damages due to the seller's warranty liability or incomplete performance on the ground that Eul company sold land contaminated by oil, heavy metals, etc. against Eul corporation, the case rejecting the claim for damages due to incomplete performance and recognizing the liability for damages due to incomplete performance

[1] Where a buyer receives an object in the course of sale and purchase between merchants and finds any defect or shortage in quantity by conducting an inspection thereof without delay, and where there is a defect not immediately discovered, Article 69(1) of the Commercial Act which provides that the buyer shall not cancel the contract, reduce the price, or claim damages for the cancellation of the contract due to the defect if the buyer fails to dispatch the notice to the seller within six months, is a special rule on the seller's liability for warranty, and it does not apply to a claim for liability for damages due to the

[2] In a case where Gap limited liability company filed a claim for damages due to the seller's warranty liability or incomplete performance on the ground that Eul company sold the land contaminated by oil, heavy metals, etc. against Eul company, the case affirming the judgment below which acknowledged the liability for damages based on the warranty liability on the ground that Eul company's sales contract with Eul company was a sale between merchants, and Gap company notified that there was a defect in soil contamination, etc. in the land that has to be more than six months after the completion of the registration of ownership transfer after delivery of the land, and that Eul company's delivery of the land without purifying contaminated soil constitutes incomplete performance.

[1] Article 69(1) of the Commercial Act, Articles 390 and 580 of the Civil Act / [2] Article 69(1) of the Commercial Act, Articles 390 and 580 of the Civil Act

[1] Supreme Court Decision 2008Da3671 Decided May 15, 2008

Seoul High Court Decision 200Na1448 delivered on August 1, 2002

The same industry corporation (Law Firm Busan et al., Counsel for the plaintiff-appellant)

Busan High Court Decision 2012Na2156 decided December 4, 2012

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Regarding ground of appeal No. 1

A. In the event that a buyer receives an object in the course of sale and purchase between merchants and finds any defect or shortage in quantity by immediately inspecting it, Article 69(1) of the Commercial Act providing that the buyer shall not claim cancellation of the contract, reduction of the price, or compensation for damages due to the buyer’s failure to dispatch the notice to the seller within six months if there is any defect not discovered immediately, and Article 69(1) of the Commercial Act providing that the buyer shall not claim for the warranty liability of the seller under the Civil Act (see Supreme Court Decision 2008Da3671, May 15, 2008, etc.). It does not apply to a claim for compensation for damages

B. In the instant case where the Plaintiff asserted that the Defendant sold each of the instant lands contaminated by oil, heavy metals, etc. to the Plaintiff, and the Plaintiff and the Defendant are liable for damages due to the seller’s warranty liability or incomplete performance, the lower court rejected the claim for damages due to the warranty liability on the ground that the Plaintiff was a sale between the Plaintiff and the Defendant, and that the Plaintiff notified the Defendant of any defect in soil contamination, etc. in each of the instant lands more than six months after the transfer of each of the instant lands from the Defendant and the completion of the registration of ownership transfer. On the other hand, the lower court acknowledged the liability for damages equivalent to the cost of purifying the contaminated soil on the ground that the Defendant’s delivery of each of the instant lands without purifying contaminated soil constitutes incomplete performance.

In light of the above legal principles, the above determination by the court below which recognized liability for damages due to incomplete performance is just, and there is no error by misapprehending the legal principles on the scope of application of Article 69 of the Commercial Act. In addition, the ground of appeal that the court below did not exercise its right of explanation on a different premise is not acceptable.

2. Regarding ground of appeal No. 2

In light of the relevant legal principles and records, the court below recognized the fact that there was soil contaminated by oil, heavy metals, etc. in the underground or underground of each land of this case, and held that the Defendant’s delivery of each land of this case without purifying the contaminated soil to the Plaintiff cannot be deemed performance in accordance with the terms and conditions of obligations under the sales contract of this case. In so doing, the court below did not err by misapprehending the legal principles on incomplete performance in the sale and purchase of specific objects, which led to failure

3. Regarding ground of appeal No. 3

Examining the record, the lower court is justifiable to have rejected the Defendant’s assertion, that is, the Defendant’s assertion that there was no cause attributable to the said incomplete performance. In so doing, the lower court did not err by misapprehending the legal doctrine on the obligor’s negligence in nonperformance of obligation, thereby failing to exhaust all necessary deliberations or by exceeding the bounds of the principle

4. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Shin (Presiding Justice)