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(영문) 대법원 1980. 3. 11. 선고 79다1948 판결
[계약금등][공1980.5.1.(631),12705]
Main Issues

Where termination of contract is unfair on the ground of nonperformance of obligation;

Summary of Judgment

In case where the buyer can claim the reduction of the price due to the lack of part of the subject matter of the sales contract, the termination of the contract made on the ground of the nonperformance is unlawful when the seller refuses the buyer's request for reduction and demands only the full payment.

[Reference Provisions]

Articles 544 and 574 of the Civil Act

Plaintiff-Appellee

Plaintiff

Defendant-Appellant

[Defendant-Appellee] Defendant 1

original decision

Daegu High Court Decision 78Na346 delivered on October 11, 1979

Text

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

Reasons

The grounds of appeal are examined.

As the court below decided, in case where the plaintiff can claim reduction of the price due to the lack of part of the object of sale in the sales contract of this case, the plaintiff's refusal of the plaintiff's request for reduction and the payment of the price in full cannot be justified, and the cancellation of the contract of November 3, 197 on the ground of the non-performance cannot be justified. Therefore, the judgment below in the same ground is just, and there is no error of law by misunderstanding the legal principles of contract rescission such as theory

In addition, the court below did not make any decision on the part of the defendant's argument that the sales contract of this case was lawfully rescinded in November 18, 1977 because the defendant suspended the payment of part payments by November 18, 1977, which was the payment date of the sales contract of this case at the plaintiff's request, and the plaintiff did not perform the payment of part payments and the remaining amount on the above date, but since the plaintiff did not perform the payment of part payments at the above date, the contract of this case cannot be rejected as a result of the above erroneous judgment because the plaintiff's refusal of payment cannot be said to have been delayed payment without the expiration of November 18, 197, 197.

Therefore, all the arguments are without reason.

No. 2, even if the plaintiff delayed the payment of intermediate payments and remaining payments, if the defendant disposed of the subject matter to another person without lawfully rescinding the contract, the defendant is responsible for the impossibility of performance. Therefore, the original judgment to the same purport is just, and there is no error of law by misunderstanding the legal principles as to the causes attributable to the impossibility of performance, such as the theory of lawsuit, and therefore, the issue is without merit

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 Ahn Byung-soo (Presiding Justice)

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