[1] The extent of the seller's provision of performance in the event that the buyer does not prepare for the payment of the remainder

[2] The case holding that in a case where the real estate sales contract entered into by the seller Gap and the buyer Eul requested the extension of the remaining payment date, Gap accepted it and notified Gap to the effect that "if the balance and interest are not paid until the extended date, the sales contract will be cancelled" was not paid even on the extended date, Eul transferred the ownership of real estate to a third party, and Gap did not obtain only a certificate of personal seal impression for sale of real estate from among the documents necessary for the registration of ownership transfer on the extended date, the judgment below erred in the misapprehension of legal principles, even though Gap completed the performance of the obligation for ownership transfer registration on the extended date

[1] If a party to a bilateral contract strictly demands the performance of one party's own obligation, the degree of offer to be made by the party may be determined reasonably as not contrary to the principle of trust and good faith depending on the time and specific circumstances. Therefore, in a case where the buyer has become aware of the preparation for receipt of the documents for registration of transfer of ownership as he/she did not prepare for payment of the remaining amount, it is sufficient for the seller to prepare for performance corresponding thereto.

[2] The case holding that the court below erred in the misapprehension of legal principle as to the party's obligation under a bilateral contract, on the ground that, in a case where the real estate sales contract entered into by the seller Gap and the buyer Eul, requested the extension of the remaining payment date, Gap accepted the remainder and the sales contract was cancelled if Eul did not pay the remainder on the extended date, and Eul failed to pay the remainder on the extended date, Eul transferred the ownership of real estate to a third party; and Gap did not obtain only a certificate of personal seal for sale of real estate from among all documents necessary for the registration of ownership transfer on the extended date, although Gap did not receive a certificate of personal seal for sale of real estate until the extended date, in light of the degree of non-performance of the duty to pay the remainder on the extended date, Eul could receive a certificate of personal seal for sale of real estate at any time, and thus Eul completed the obligation to pay the remainder on the extended date on the ground that the real estate sales contract was lawfully cancelled by failing to perform the duty to pay the remainder on the extended date on the other premise.

[1] Articles 460 and 536 (1) of the Civil Act / [2] Articles 460 and 536 (1) of the Civil Act

[1] Supreme Court Decision 2001Da36511 decided Dec. 11, 2001 (Gong2002Sang, 260)

B. Vone Star Co., Ltd. (Law Firm KJ et al., Counsel for the defendant-appellant)

Suwon Construction Co., Ltd. (Law Firm Gyeongsung, Attorneys Lee Dong-tae et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 201Na85552 decided June 20, 2012

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Seoul High Court.

The grounds of appeal are examined.

If a strict request for the performance of one party's own obligation in a bilateral contract is required, the degree of offer to be made by the other party may rather be made to the bona fide party. Thus, the extent of payment to be made by the other party is determined reasonably as not contrary to the principle of trust and good faith depending on the time and specific circumstances. Therefore, in a case where the buyer has become aware of the preparation for receipt of the documents for registration of transfer of ownership as he did not make the payment of the remaining amount, it is sufficient for the seller to prepare for performance corresponding thereto (see Supreme Court Decision 201Da36511, Dec. 11, 2001, etc.).

According to the reasoning of the judgment below and the evidence duly admitted by the court below, the plaintiff concluded the sales contract of this case to purchase the real estate of this case from the defendant 13 billion won on August 5, 2009 and paid the down payment of 11.7 billion won on the same day. The plaintiff failed to pay any balance by October 3, 2009, and the defendant notified the plaintiff that he would cancel the sales contract of this case without paying any balance on October 6, 2009. The defendant requested the extension of the payment date of the remainder, but the defendant again notified the plaintiff that he would sell the real estate of this case without paying any balance on October 20, 209 without paying it as soon as possible. The defendant would sell the real estate of this case by not later than 3 years after being issued a certificate of seal impression 13 billion won on December 5 and December 4, 2009, and notified the plaintiff that he would sell the real estate of this case to the defendant on the remaining 15th day after the expiration of the sale period.

Examining the above facts in light of the legal principles as seen earlier, the Plaintiff was unable to prepare for the remainder payment even until May 31, 2010, which the Defendant notified as the remainder payment date, and in light of the Plaintiff’s degree of non-performance of contractual obligations, even if the Defendant did not obtain only a certificate of personal seal impression for real estate sale among the documents necessary for the registration of ownership transfer until May 31, 2010, it can be issued and issued at any time, and thus, the Plaintiff’s performance of the obligation to transfer ownership can be deemed as having been completed. Accordingly, based on the conditional cancellation intention notified by the Defendant to the Plaintiff on April 30, 2010, the sales contract of this case was lawfully rescinded due to the Plaintiff’s failure to perform the obligation to pay the remainder until May 31, 2010.

Nevertheless, the court below held that the above conditional cancellation intention is unlawful as the defendant failed to fulfill his duty to transfer ownership on a different premise. The court below erred by misapprehending the legal principles on the provision of one party's own obligation in bilateral contract, thereby affecting the conclusion of the judgment. The ground of appeal assigning this error is with merit.

Therefore, without examining the remaining grounds of appeal by the Defendant, the part against the Defendant among the judgment below is reversed, and that part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Min Il-young (Presiding Justice)