[1] In a case of damages caused by a seller's warranty liability under Article 576 of the Civil Act where the court is recognized to have contributed to the occurrence and expansion of damages to the person having the right to compensation, whether the court shall take such fact into account in determining the scope of damages (affirmative), and whether the court shall ex officio examine and determine the damages even if the person having the right to compensation fails to make a defense of offset due to the negligence of

[2] The time when a seller is liable for delay for damages arising from the seller's liability for warranty under Article 576 of the Civil Code (=the time when a claim for performance was received)

[1] Articles 396 and 576 of the Civil Act, Article 134 of the Civil Procedure Act / [2] Articles 387(2) and 576 of the Civil Act

[2] Supreme Court Decision 2009Da9539 Decided May 28, 2009

Plaintiff 1 and one other

Defendant (Attorney Choi Jong-soo, Counsel for the defendant-appellant)

Seoul High Court Decision 2012Na56216 decided November 1, 2013

The part of the lower judgment against the Defendant regarding damages for delay is reversed, and that part of the case is remanded to the Seoul High Court. The remainder of the appeal is dismissed.

The grounds of appeal are examined.

1. As to the assertion of comparative negligence

A. Based on evidence adopted, the lower court: (a) purchased shares on July 12, 199 as to the non-party 1-2,975/5,402 shares out of non-party 5,402 Miscellaneous land 1-2,00, which were co-owned by the Defendant and non-party 1; (b) purchased shares on July 2, 199; and (c) purchased shares on November 23, 199, 2,427 square meters (hereinafter “the instant land”) and (iv) miscellaneous land 2,975 square meters; (c) acquired shares on April 28, 200 to the non-party 2, which were co-owned by the Defendant and the non-party 1; (d) acquired shares on the non-party 2,500,000 won of the instant land from the non-party 1 to the non-party 3,506,000 won of the purchase price to the non-party 250,0065,000.

B. In the case of damages arising from the seller's liability for warranty, if the negligence is recognized as having contributed to the occurrence and expansion of damages to the person having the right to compensation, the court shall consider it in determining the scope of damages in accordance with the principle of fairness. Even if the person having the right to compensation fails to make a offset due to the negligence of the person having the right to compensation, if the liability for damages is found to have been negligent based on the materials in the lawsuit, the court shall

However, in light of the facts acknowledged by the court below, the damages suffered by the plaintiffs were caused by the plaintiffs' loss of ownership due to the execution of the right to collateral security established prior to the purchase of the land of this case. The plaintiffs believed that the right to collateral security of this case would be cancelled at the time, or that the lawsuit of this case was filed at the time of the expiration of the extinctive prescription, cannot be deemed as the plaintiffs' negligence affecting the occurrence or expansion of the damages of this case. There is no other evidence supporting that the plaintiffs had contributed to the occurrence or expansion of the damages of this case. Therefore, even though the court below did not deliberate and decide on whether the plaintiffs had been negligent in contributing to the occurrence or expansion of the damages of this case, it did not err by misapprehending the legal principles on comparative negligence or omitting judgment, contrary to the allegations in the

2. As to the assertion on damages for delay

The seller's liability for warranty pursuant to Article 576 of the Civil Code is due to the seller's liability for warranty and there is a delay liability from the time of receiving a claim for performance as a liability with no time limit for performance (see Supreme Court Decision 2009Da9539, May 28, 2009).

The lower court determined that the Defendant is liable to pay the amount equivalent to the shares lost by the Plaintiffs out of the purchase price of the instant land in addition to delay damages from June 4, 2002, after Nonparty 4 transferred ownership registration. However, there is no evidence suggesting that the Plaintiffs filed a claim for damages based on the seller’s warranty liability before the duplicate of the instant claim was served on the Defendant. Therefore, the Defendant cannot be deemed liable for delay from June 4, 2002, which is the day before the duplicate of the instant claim was served on the Defendant.

Therefore, the lower court erred by misapprehending the legal doctrine on delayed liability for an obligation with no time limit for performance, thereby adversely affecting the conclusion of the judgment. The ground of appeal assigning this error is with merit.

3. Conclusion

Therefore, the part of the judgment of the court below against the defendant is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The remaining appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ko Young-han (Presiding Justice)