In cases where an uncertain fact occurs and the performance period is determined, whether the performance period has arrived even when such fact becomes impossible (affirmative)

Article 152 of the Civil Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jong-soo et al., Counsel for plaintiff-appellant)

centa City Co., Ltd. (Law Firm Samyang, Attorneys Song Won-won et al., Counsel for the plaintiff-appellant)

Dadiv Korea Ltd. (Law Firm Barun, Attorneys Yoon Won-sik et al., Counsel for the plaintiff-appellant)

Busan High Court Decision 2005Na503 delivered on October 20, 2005

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

The grounds of appeal are examined.

1. According to the reasoning of the judgment below, the court below acknowledged facts as stated in its holding, and judged that since the defendant's boundary line and size of real estate for the purpose of purchase at the time of conclusion of the memorandum of Understanding of this case did not specify the final and specific size, the defendant agreed to enter into a contract for the temporary purchase of the land which was agreed to be purchased by the plaintiff et al. by specifying the location from the plaintiff et al., the plaintiff et al. shall not be deemed to have violated the duty under the memorandum of Understanding of this case on the ground that the plaintiff et al. entered into a contract for the sale of the land in question with the non-party company after the conclusion of the letter of Understanding of this case. In light of the records, the court below's above fact-finding and determination are just, and there is no error of law such as incomplete deliberation, misconception of facts due to violation of the rules

2. Where the parties have determined the period for performance when the occurrence of uncertain facts occurs, the period for performance should be deemed to have come when not only the occurrence of such fact but also when the occurrence of such fact becomes impossible (see Supreme Court Decision 88Meu10579, Jun. 27, 1989).

According to the records, Article 3(7) of the MOU of this case provides that "where the defendant fails to comply with the development schedule due to inevitable circumstances, the implementation period of the development schedule is extended as long as there exist such circumstances, and the negotiation issue concerning the site boundary between the non-party company and the non-party company constitutes inevitable circumstances." However, in light of the circumstance and purpose of the MOU of this case and the fact that the negotiation on the site boundary between the non-party company and the non-party company ultimately belongs to the defendant, it is reasonable to deem that the above provision provides for the period of the defendant's duty to fulfill the development schedule.

In addition, according to the facts established by the court below, the defendant continued consultations with the non-party company until August 2001 when seeking consultation on the site boundary and did not reach the concession, and thereafter, since the non-party company had already obtained permission to construct department stores with a content different from the proposal made by the defendant at the time of the consultation, it is impossible to reach an agreement on the site boundary between the defendant and the non-party company, barring any special circumstance, and thus, it shall be deemed that the period for performance of the defendant's obligation according to the

Under the premise that consultation on the site boundary between the defendant and the non-party company cannot be achieved, the court below judged that the letter of understanding in this case was lawfully released due to the defendant's non-performance of obligation under the development schedule. The court below's decision is acceptable as it is in accordance with the above legal principles, and there is no error of law such as misunderstanding of legal principles as to the indefinite period as argued in the Grounds

3. 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.

Justices Kim Young-ran (Presiding Justice)