2019dada 19690 Claim for penalty for termination of a sales contract

A

B

Attorney Go Jae-il, Counsel for the defendant-appellant

June 4, 2020

July 2, 2020

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The defendant shall pay to the plaintiff 50 million won with 12% interest per annum from the day following the delivery of a copy of the complaint of this case to the day of complete payment.

1. Basic facts

A. The Defendant, as the owner of the Guro-gu Seoul Metropolitan Government C large-scale 86С and its ground buildings (hereinafter “instant real estate”), requested the D Licensed Real Estate Agents’ Office (Licensed Real Estate Agent E) to sell the instant real estate.

B. On August 1, 2019, E sent a phone call to the Defendant that there was a purchaser of the instant real estate, and the Defendant notified E of his account numbers.

C. On August 1, 2019, the Plaintiff remitted KRW 10 million to the Defendant.

D. Around August 5, 2019, the Defendant expressed his intent not to sell and purchase the instant real estate to E, and on the same day, visited the Plaintiff’s opening office among the Plaintiff’s Fast official seal to return KRW 10 million paid by the Plaintiff.

E. The Plaintiff refused to return KRW 10 million from the Defendant, and on August 9, 2019, the Defendant deposited KRW 20 million as Seoul Southern District Court deposited KRW 3460,000,000, as the principal deposit account in Seoul Southern District Court in 2019.

F. On August 12, 2019, the Plaintiff sent a content-certified mail stating that “The contract amount: KRW 377 million [the contract amount: KRW 10 million (the payment of KRW 10 million on August 1, 2019, which is the date of the contract, KRW 20 million on August 9, 2019: the payment on August 9, 2019; the remaining date: September 30, 2019; the scheduled date for the preparation of the contract: August 5, 2019]; thus, the Plaintiff signed a sales contract to the Defendant on August 5, 2019]; thus, the terms and conditions of the contract were faithfully fulfilled.”

G. On October 7, 2019, the Plaintiff returned to the Defendant on September 30, 2019, which was the date of payment of the remainder, to the D Licensed Real Estate Agent Office, but the Defendant failed to pay the balance of the purchase price due to the Defendant’s failure to appear. As such, the Plaintiff terminated the sales contract of the instant real estate, and thus, the Plaintiff sent the content-certified mail stating that the payment of KRW 60,000,000,000, which is double the down payment, was changed until October 10, 2019.

H. On October 10, 2019, the Defendant sent to the Plaintiff a content-certified mail stating that “The Plaintiff did not enter into a sales contract on the instant real estate” to the effect that it transferred KRW 10 million to the Plaintiff, and that “the Plaintiff did not enter into a sales contract on the instant real estate.”

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, Eul evidence 1 to 3 and the purport of the whole pleadings

2. Summary of the plaintiff's assertion

On August 1, 2019, the Plaintiff and the Defendant concluded a sales contract with the Defendant to purchase the instant real estate in KRW 377 million (the contract deposit of KRW 30 million and the remaining payment date of September 30, 2019), and paid KRW 10 million out of the contract deposit to the Defendant. However, the Defendant unilaterally refused to accept the remainder of the contract deposit of KRW 20 million from the Plaintiff while unilaterally destroying the instant sales contract, and the Defendant deposited the down payment of KRW 20 million.

On September 30, 2019, the remaining payment date of the Defendant did not go to a licensed real estate agent office, and the Plaintiff failed to pay the remainder to the Defendant. A sales contract concluded between the Plaintiff and the Defendant was impossible due to the Defendant’s nonperformance of obligation, and the Plaintiff expressed its intent to terminate the sales contract with the Defendant on this ground.

Therefore, the defendant is obligated to pay to the plaintiff a penalty of KRW 60 million, which is a double of the down payment of KRW 30 million. Thus, the defendant is obligated to pay the plaintiff a penalty of KRW 50 million, which is the sum of the down payment of KRW 60 million, after deducting the amount already paid by the defendant from the above KRW 60 million.

3. Determination

A. In order for a contract to be concluded, the agreement between the parties is required to be reached, and such agreement is not required with respect to all matters that form the content of the contract in question, but there is a need for a specific agreement with respect to the essential matters or important matters, and at least the standard and method that can specify them in the future. In the event that no agreement is reached or agreement is reached, it is reasonable to deem that the contract has not been concluded, barring any special circumstances (see, e.g., Supreme Court Decision 2017Da242867, Oct. 26, 2017).

B. In light of the following circumstances that can be acknowledged by comprehensively taking account of the purport of the entire pleadings, the evidence submitted by the Plaintiff alone cannot be deemed as having concluded a sales contract between the Plaintiff and the Defendant regarding the instant real estate, and there is no other evidence to acknowledge it otherwise.

1) On August 1, 2019, E called that there is a purchaser by telephone to the Defendant, and that today’s deposit is KRW 10 million, and the contract will be made once more as time. Following the week, E entered the next week with KRW 20 million and KRW 30 million, and the remainder date will be set at the end of September without intermediate payment. It stated that “The remainder will proceed once.”

2) On August 1, 2019, E called “five million won by phone calls again to the Defendant, and put the remainder of five million won at three in p.m. at three in p.m.,” and “a contract is deemed to be fine at any time and within the interior?” In response, the Defendant stated that “I will open the phone at one’s own time and at one’s own time.”

3) As above, the Defendant seems to have merely made E- call, a licensed real estate agent, and did not know who is the buyer accurately.

4) In the instant real estate, the establishment registration of a mortgage on March 28, 201, the maximum debt amount of which was KRW 130,000,000,000,000,000,000 (the maximum debt amount of which was March 28, 201, and KRW 65,000,000 (the maximum debt amount) was completed on May 14, 2014. However, the conversation between the Defendant and E on August 1, 2019 did not refer to each of the said mortgages.

5) The Defendant, while holding a telephone call with real estate agents E who are not the purchaser, was consulted to a certain extent about the purchase price and the down payment of the instant real estate, and was delivered to the purchaser as to whether the intermediate payment was made and the remaining payment period.

6) Inasmuch as the Defendant received KRW 10 million from the Plaintiff after dialogueing with the Plaintiff on the foregoing terms and conditions, it is difficult to deem that there was a specific agreement between the Plaintiff and the Defendant on the amount, timing and method of payment, etc. of the down payment, intermediate payment, and balance corresponding to the essential or important matters of the sales contract.

7) It is reasonable to view that the Plaintiff’s KRW 10 million deposited into the Defendant’s account on August 1, 2019 is a kind of increase fund (a provisional contract) that the Plaintiff would continue to enter into a sales contract with the Defendant by disclosing the intent to enter into the sales contract with the Defendant before entering into the sales contract, and that if a sales contract is entered into in the future, it shall substitute the payment for a part of the down payment, and if the sales contract is not entered into, it shall be returned in lieu of the payment of the down payment, and if the contract is not entered into, it shall be deemed that the deposit has the nature of the down payment in principle pursuant to Article 565(1) of the Civil Act, and it shall not be deemed that the provisional contract amount has the nature of the down payment, as a matter of course, since there is no such provision regarding the provisional contract amount, such as deposit money, etc.

4. Conclusion

Therefore, the name of this case is dismissed as it is without merit. It is so decided as per Disposition.

Judges semi-permanent forests