The meaning of an agreement under which the contract is automatically rescinded if the buyer fails to pay the price by the due date for the payment of the remaining price.

Even though there is an agreement that if the buyer fails to pay the price by the due date, the contract shall be automatically rescinded, barring special circumstances, the buyer's obligation to pay the remainder and the seller's obligation to transfer ownership registration at the same time. Therefore, the seller's obligation to pay the remainder and the seller's obligation to transfer ownership are concurrently performed, and the contract shall be automatically rescinded only when the buyer provides the buyer with documents necessary for the registration of transfer of ownership at the due date for payment and makes the buyer enter into the delay of performance, and even if the buyer exceeds the due date, the contract shall not be automatically rescinded.

Article 544 of the Civil Act

Supreme Court Decision 76Da890 Decided June 8, 1976 delivered on October 30, 1979

Plaintiff 1 et al., Counsel for the plaintiff-appellee

Defendant

Msan District Court Decision 87Na235 delivered on October 18, 1988

The part of the lower judgment against the Plaintiffs regarding the conjunctive claim shall be reversed, and that part of the case shall be remanded to the Masan District Court Panel Division.

The remaining appeals by the plaintiffs are dismissed, and the costs of appeal against this dismissed are assessed against the plaintiffs.

We examine the grounds of appeal.

According to the reasoning of the judgment below, the court below concluded a new agreement between the plaintiffs and the defendant on December 31, 1985 that the resale contract between the plaintiff and the defendant on June 10 of the same year, which is the date of the original pit contract, was null and void, and the 60 square meters and above ground buildings among the real estate in this case belong to the defendant, and the remaining 81 square meters and above ground buildings shall belong to the plaintiffs, and the plaintiffs shall pay the price for the above building site and building until March 30, 1986 to the defendant until March 30, 1986, and if the defendant fails to pay the price by that time, the defendant shall pay the defendant the price for the above building to the non-party commercial bank on December 31, 1985, and the defendant shall pay the purchase price for the remaining real estate under the name of the defendant on December 31, 1986, and the plaintiffs shall not pay the price for the above real estate by 3rd 1981 of the above ground sale and sale contract.

However, according to the purport of evidence No. 7 (Agreement) employed by the court below and the purport of pleading, it can be known that the defendant entered into an agreement to sell the above real estate site 81 square meters and the above ground buildings to the plaintiff among the above real estate. Thus, even if there is an agreement between the plaintiffs and the defendant that if the plaintiffs fail to pay the price to the defendant by March 30, 1986, the above agreement is automatically rescinded, barring special circumstances, the purchaser's obligation to pay the remaining price and the seller's obligation to transfer the ownership registration duty to the defendant, who is the seller, has a simultaneous performance relationship. Thus, the above sales contract should be automatically rescinded only when the defendant prepared documents necessary for the registration of the transfer of ownership and notified the plaintiffs on the remaining payment date, and even if the plaintiffs failed to pay the price to the plaintiff, the above contract cannot be viewed as automatically rescinded unless it was delayed (see Supreme Court Decision 78Da1697, Jun. 8, 1976; 709Da169797, Jun. 19, 197).

Therefore, the court below should determine the validity of the above sales contract after specifying whether the defendant, a seller, prepared documents necessary for the registration procedure on the date of the payment of the remainder of the purchase price and provided the plaintiffs with the obligation to perform his own obligation, such as informing the purchaser. The court below should consider the above sales contract as a contract with the condition of the rescission of the contract without reaching this point, and it is erroneous in the misapprehension of legal principles as to the termination of the contract or in the incomplete hearing. Therefore,

According to the records, although the plaintiffs filed an appeal on the whole part of the judgment of the court below against the plaintiffs (the main claim and the conjunctive claim), it cannot be deemed that there was a submission of the appellate brief on this part, since there was no express ground for appeal as to the main claim.

Therefore, without further proceeding to decide on the remaining grounds of appeal by the plaintiffs, the part concerning the conjunctive claim against the plaintiffs is reversed, and this part of the case is remanded to the court below. The remaining grounds of appeal by the plaintiffs are dismissed. The costs of appeal as to this dismissed part are assessed against the losing party. It is so decided as per Disposition by the assent

Justices Yoon So-young (Presiding Justice)