Where a real estate purchaser has agreed to take over a debt related to the subject matter of sale and deduct the amount of such debt from the purchase price, the legal nature of the takeover and the requirements for the right to cancel the contract where the purchaser fails to discharge the obligation he/she has received and the

Articles 454 and 543 of the Civil Act

Supreme Court Decision 92Da23193 delivered on February 12, 1993 (Gong1993Sang, 962) Supreme Court Decision 94Da58599 delivered on August 11, 1995 (Gong1995Ha, 3124) Supreme Court Decision 2006Da69479, 69486 Delivered on September 21, 2007 (Gong2007Ha, 1653)

Plaintiff (Law Firm Household, Attorneys Kim Sang-soo, Counsel for the plaintiff-appellant)

Master Development Co., Ltd.

Seoul Central District Court Decision 2010Na46212 Decided December 21, 2011

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

The grounds of appeal are examined.

Where the purchaser of a real estate agrees to take over the obligation of the object of sale and purchase and to deduct the amount of the obligation from the purchase price, the acquisition shall be deemed not an assumption of the obligation of the seller, unless there are special circumstances, but an obligation of the buyer to actually repay the obligation taken over at the time of the purchase and sale contract. Barring special circumstances, the buyer bears the obligation to pay the remainder after deducting the amount of obligation from the purchase and sale price. Thus, even if the purchaser did not actually pay the above obligation, the seller cannot rescind the purchase and sale contract. However, if there are special circumstances that can be deemed the same as the purchaser’s failure to pay part of the purchase and sale price, the right to cancel the contract arises (see, e.g., Supreme Court Decisions 92Da23193, Feb. 12, 1993; 94Da58599, Aug. 11, 1995).

According to the reasoning of the judgment below, in full view of the circumstances in its reasoning, the court below determined that the Defendant’s obligation for the instant real estate was identical to the Defendant’s failure to pay part of the purchase price solely on the ground that the instant real estate was sold to a third party in a voluntary auction procedure by calculating the amount of KRW 235,00,000,00, and at the same time, the Defendant succeeded to the Plaintiff’s obligation for the instant real estate, and paid KRW 15,00,000 to the Plaintiff.

In light of the above legal principles and records, the above determination by the court below is just and acceptable, and contrary to the allegations in the grounds of appeal, there is no error of law by misapprehending the legal principles as to whether there exists a special reason that can be evaluated as identical to the occurrence of right of rescission due to nonperformance of obligation or payment of part of the purchase price.

Meanwhile, the Plaintiff asserted that there exists a inconsistency among the Supreme Court precedents on the acceptance of performance or the legal principles presented by such Supreme Court precedents are unreasonable, but such assertion is difficult to accept as it goes against the established opinion of the Supreme Court on acceptance of performance.

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 Lee Sang-hoon (Presiding Justice)