[1] In a case where a seller’s obligation to transfer ownership on the subject matter of sale becomes impossible due to a buyer’s cause attributable to the buyer, whether the buyer can rescind the contract on the grounds of nonperformance (negative)

[2] The case holding that the seller's liability for the transfer of ownership on the subject matter of sale is the buyer solely for the reason that the seller is unable to perform

[3] The effect of the peremptory notice of performance, in case where the peremptory notice of performance for the cancellation of the contract is given only when it is possible for the creditor to perform the obligation only at any time without a peremptory notice to inform the debtor of the date, time, place, etc. for the creditor to perform the act necessary for the completion of performance, even though the obligation to be notified is being performed more than a simple receipt by its nature

[4] The case reversing the court below's decision on the ground that there was an error in the misapprehension of law by failing to perform a duty to explain the legitimacy of the notice of performance under the premise of termination

[1] In order to cancel a contract for an impossibility of performance, such impossibility must only be caused by the obligor’s cause attributable to the obligor (Article 546 of the Civil Act). Thus, even if a seller’s obligation to transfer ownership on the subject matter of sale and purchase has become impossible to perform the ownership transfer obligation, if such impossibility is caused by the buyer’s cause attributable to the buyer, the buyer may not cancel the contract

[2] The case holding that the seller's liability for the transfer of ownership on the object of sale is the buyer solely for the impossibility of performing the seller's obligation

[3] In a peremptory notice of performance for the cancellation of a contract, where the performance is completed by a simple receipt or more act even for the obligee due to the nature of the obligation, such as the obligation for the registration of ownership transfer, the obligee needs to make a peremptory notice to inform the obligor of the date, time, place, etc. of the performance necessary for the completion of the performance. However, since the performance of the obligation is to be done through cooperation between the obligee and the obligor, it cannot be deemed that the obligee has no effect as a peremptory notice of performance for the cancellation of the contract immediately because the obligee did not make a peremptory notice to inform the obligor of the above contents. If the obligee made such peremptory notice, the obligee must also cooperate with the determination of the fixed time and place by the method of questioning the obligee. If the obligor and the obligor have set a peremptory period just without such peremptory notice, the obligee's obligation for the performance of the contract, whether the obligee made a lump sum contact with the obligor, and other circumstances should be considered as valid until that time.

[4] The case reversing the court below's decision on the ground that it was erroneous in the incomplete hearing because it failed to perform its duty of explanation as to the legitimacy of the highest notice of performance under the premise of

[1] Article 546 of the Civil Code/ [2] Article 546 of the Civil Code/ [3] Article 544 of the Civil Code/ [4] Article 126 of the Civil Procedure Act

Plaintiff 1 and one other (Law Firm Jeong, Attorneys Lee Si-le et al., Counsel for the plaintiff-appellant)

Defendant (Attorney Kim-type, Counsel for defendant-appellant)

Daejeon High Court Decision 99Na4144 delivered on August 24, 2000

The judgment of the court below is reversed, and the case is remanded to Daejeon High Court.

1. The facts supporting the original judgment

The court below held that, around December 20, 1995, the non-party 1, who was represented by the plaintiffs, entered into a contract with the non-party 1, the plaintiffs' real estate owned by the non-party 2, the defendant's purchase of the land and the building on the ground (location 1 omitted) purchased from the non-party 2 on behalf of the non-party 3, and the defendant's purchase of forest land (location 2 omitted) purchased from the non-party 3 for exchange with the non-party 3 (hereinafter "real estate located in Cheongong-gun"), the real estate located in Masan-gun and the intermediate payment for the remaining 9,000 won (hereinafter "real estate owned by the defendant"), but the real estate located in Masan-gun was transferred to the non-party 2,500,000 won under the name of the above 9,000 won under the name of the non-party 1,60,000 won. The real estate located in Cheongong-gun-gun-gun-gun is actually owned by the plaintiffs 2,50,0,0,0.

2. As to the ground of appeal on real estate located in the Monosan-gun

In order to cancel a contract for reasons of impossibility of performance, the impossibility of performance must only be caused by the cause attributable to the debtor (Article 546 of the Civil Act). Thus, even if the seller's obligation to transfer ownership on the object of sale has become impossible to perform the seller's obligation to transfer ownership, if the impossibility of performance is caused by the buyer's cause attributable to the buyer, the buyer cannot cancel the contract

The court below held that the defendant's obligation to transfer the ownership to the non-party 1 was not fulfilled despite the delivery of the documents required for the transfer registration of the ownership to the non-party 2 under the exchange contract of this case, and that the defendant's obligation to transfer the ownership to the non-party 1 was finally impossible. Thus, the plaintiffs' assertion that the non-party 2's obligation to transfer the ownership to the non-party 1 was to cancel the above exchange contract for this reason because it was not fulfilled, the defendant's intention to sell the real estate to the non-party 2, and thus, it was thought that the defendant's right to transfer the real estate to the non-party 9 was not transferred to the defendant or that it was impossible to sell the real estate to the non-party 1 as a result of the above transfer registration of the non-party 2's request for sale of the real estate under the name of the non-party 1 to the non-party 2 for sale of the real estate under the non-party 1's own ownership right at the time of the above intermediate sale.

In light of the above legal principles and the records, the above judgment of the court below is just and there is no error in the rules of evidence, the error in interpreting the declaration of intent, or the interpretation of the disposal document, as otherwise alleged in the ground of appeal.

3. As to the ground of appeal on the real estate located in Cheongong-gun

In addition, the court below also held that the plaintiffs' assertion that he had cancelled the exchange contract of this case on the ground that the defendant did not perform his duty within the period despite the plaintiffs' notice of performance of the duty to transfer ownership of the real estate located in Cheongong-gun, shall be valid only with the peremptory notice informing the debtor of the date, time, place, etc. that the creditor can perform the act necessary for the completion of the performance when the performance is completed, such as the obligation to transfer the registration of the performance for the cancellation of the contract, and the peremptory notice that the creditor should perform the act only at any time when the performance is completed, and there is no evidence to acknowledge that the plaintiffs met the above peremptory notice requirements and notified the defendant to perform the above duty to transfer ownership of the real estate located in Cheong-gun on September 7, 1997, although the plaintiffs notified the defendant to register the ownership of the real estate located in Cheong-gun to the defendant by September 15, 197, it can only be recognized that there was no mentioning fact about the date and place of the performance.

However, we cannot accept the above determination by the court below for the following reasons.

In making a peremptory notice of performance for the cancellation of a contract, where the performance is completed by simple receipt or more by the nature of the obligation, such as the obligation for which the highest obligation is to be registered for transfer of ownership, there is a need for the obligee to make a peremptory notice to inform the obligor of the date, time, place, etc. of the performance necessary for the completion of the performance. However, since the performance of the above obligation is to be done through cooperation between the obligee and the obligor, it cannot be said that the obligee has no effect as a peremptory notice of performance for the cancellation of the contract, on the ground that the obligee did not make a peremptory notice to inform the obligor of the above contents. If the obligee made such peremptory notice, the obligor also must cooperate with the final date, time, and place of performance by the method of questioning the obligee. If the obligor has set the highest period without such peremptory notice, then the obligor must also be deemed valid by taking into account the nature of the obligor and the obligor's performance, whether the obligee made oral contact with the obligor at once and at once, and other circumstances.

In addition, examining the progress of the instant lawsuit in accordance with the records, the Defendant merely asserted that the execution period stipulated in the above peremptory notice is too short and was unreasonable until the closing of argument in the lower court. There was no peremptory notice informing the Defendant of the date, time, place, etc. of the act necessary for the completion of the performance, and thus, did not appear to have made any allegation that it is unlawful. Such issues were not discussed in the instant pleading process. The lower court rejected the Plaintiffs’ assertion on the ground that the foregoing peremptory notice did not notify the Defendant of the date, time, place, etc. necessary for the completion of the performance, and thus, it was unlawful.

Therefore, the court below should have deliberated on other circumstances such as the plaintiffs and the defendant's nature for the execution of the contract up to the highest period of time, time, place, etc., and whether there is no sufficient notification to the defendant in addition to sending the above peremptory notice of performance, etc., the court below should have determined that the above peremptory notice of performance was a peremptory notice to the defendant not to notify the time, place, etc. of the date, place, etc. necessary for the completion of performance, and that there is no sufficient notification to the defendant. In this case, the court below should have determined that the above peremptory notice of performance was a peremptory notice of which the plaintiffs did not notify the defendant of the date, time, place, etc., and that the plaintiffs did not properly affect the conclusion of the judgment because it did not err in the misapprehension of the legal principles on the peremptory notice of performance as a premise of termination of contract or did not expect the plaintiff to have any legal point of view, and did not properly affect the plaintiff's duty of cancellation of exchange contract due to the lack of sufficient deliberation.

In addition, as long as an exchange contract was concluded by combining the real estate owned by the plaintiff and the real estate located in the Cheongong-gun and the real estate located in the Magsan-gun, the illegality of the court below in the above judgment affected the conclusion of the whole exchange contract of this case.

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Song Jin-hun (Presiding Justice)