Whether a buyer can claim damages on the ground of the seller’s delay in delivery of the subject matter of sale, where the buyer did not fully pay the purchase price (negative)

According to Article 587 of the Civil Code, negligence arising from an object not delivered even after the purchase and sale contract was concluded shall belong to the seller, and the buyer shall pay the interest on the purchase-price from the date on which the object was delivered to the buyer. This is because even if the object of sale is not delivered in order to ensure the equity between the parties to the purchase and sale, if the buyer fully pays the purchase-price, the negligence at that time shall belong to the buyer, but if the object of sale is not delivered and the buyer does not fully pay the purchase-price, even if there is a delay in the performance of the seller, the buyer is entitled to seek compensation

Articles 387, 390, and 587 of the Civil Act

Supreme Court Decision 80Da211 Decided May 26, 1981 (Gong1981, 13969) Supreme Court Decision 91Da32527 Decided April 28, 1992 (Gong1992, 1704) Supreme Court Decision 93Da28928 Decided November 9, 1993 (Gong194, 80) Supreme Court Decision 95Da14190 Decided June 30, 1995 (Gong195Ha, 2574)

Co., Ltd. (Law Firm Ba, Attorney Yang Tae-tae, Counsel for the defendant-appellant)

Defendant 1 and one other (Law Firm Global Law, Attorney O Jin-hwan, Counsel for the defendant-appellant)

Seoul High Court Decision 2003Na15138 delivered on December 26, 2003

The part of the judgment of the court below concerning the claim for damages is reversed, and that part of the case is remanded to the Seoul High Court. All remaining appeals are dismissed.

1. The court below, based on its adopted evidence, found on November 27, 2001, the plaintiff purchased the land and buildings of this case from the defendants on November 27, 2001, and KRW 600 million out of the down payment of KRW 1.1.66 million on the date of the contract, the remainder of KRW 5.6 million until November 30, 2001, and the intermediate payment of KRW 1.74 billion on January 2002. The remainder of KRW 2.9 billion was paid to the defendants on April 30, 2002 after completing the registration of transfer under the name of the plaintiff, and the defendants ordered the land and buildings of this case to be paid to the plaintiff on April 30, 200, and the remainder payment of KRW 1.5 billion on April 30, 2002 may be delayed by mutual agreement, and the defendants received the down payment of KRW 1.5 billion on the date of the contract, and acknowledged the defendants' right to demand payment on April 2001 billion on the date.

In light of the records, the above fact-finding by the court below is just and acceptable, and there is no error of law in misunderstanding of facts due to violation of the rules of evidence or incomplete deliberation as alleged in the grounds of appeal, and the court below's determination that there is an error of law in misunderstanding of legal principles as to the interest of a lawsuit in future performance, contrary to the facts acknowledged by the court below, the plaintiff's claim for the registration of transfer of ownership against the

2. In the sales contract between the plaintiff and the defendants, the court below rejected all defenses that the defendants' assertion of the cancellation of the contract or the fulfillment of the conditions of cancellation on the premise that the non-party 1, etc. agreed not to order the land and buildings of this case until April 30, 2002 as the condition of cancellation, or agreed to adjust the remaining payment period in comparison with the agreement between both parties. In light of the records, the above judgment of the court below is just and acceptable, and there is no error in the misapprehension of legal principles as to the violation of the rules of evidence, the incomplete trial, or the fulfillment of the conditions of cancellation or the conditions of cancellation as

3. The court below rejected the defendants' defense of simultaneous performance that the defendants refused to implement the procedure for the registration of ownership transfer against the plaintiff until the plaintiff is paid the remaining amount. The court below rejected the defendants' defense of simultaneous performance that the defendants refused to implement the procedure for the registration of ownership transfer by witness 1 of the court of first instance, and there is no other evidence to acknowledge that the plaintiff's obligation to pay the remaining amount and the defendant's obligation to implement the procedure for the registration of ownership transfer is related to the simultaneous performance. The above judgment of the court below is acceptable,

4. (1) As to the Plaintiff’s claim for damages, the lower court acknowledged that the Defendants failed to comply with the agreement, notwithstanding having agreed to order the Plaintiff to surrender the instant land and buildings until April 30, 2002, and, barring any special circumstance, the Defendants jointly and severally liable for damages incurred by the Plaintiff from failure to use or make profits from the instant land and buildings, and barring any special circumstance, the Defendants’ failure to perform their duty to specify and specify the instant land and buildings is the rent for the instant land and buildings, barring any special circumstance. Therefore, in a case where there is no security deposit, the lower court upheld the first instance judgment that partially accepted the Plaintiff’s claim for this part, by calculating the amount of damages on the basis of the monthly rent equivalent to KRW 8 million from May 1, 2002 to the date of closing the argument.

(2) However, we cannot agree with the above determination by the court below for the following reasons.

According to Article 587 of the Civil Code, the fruits arising from the object which has not been delivered even after the purchase and sale contract was concluded shall belong to the seller, and the buyer shall pay the interest on the purchase-price from the date on which the object has been delivered. This is to say that even if the object of sale is not delivered in order to ensure the equity between the parties to the purchase and sale, if the buyer fully pays the purchase-price, the fruits thereafter shall belong to the buyer, but if the object of sale is not delivered and the buyer does not fully pay the purchase-price, the fruits shall belong to the seller even if there is a delay in the performance of the seller (see Supreme Court Decision 91Da32527 delivered on April 28, 192).

As duly determined by the court below, even though the Defendants agreed to order the Plaintiff to sell the land and buildings of this case until April 30, 2002, the Plaintiff, the buyer, barring any special circumstance, can not claim damages arising from delay in the performance of the duty to deliver the subject matter of sale against the Defendants, the seller, unless there is any assertion and proof that the Plaintiff paid the purchase and sale remainder to the Defendants.

On the contrary, the judgment of the court below which partially accepted the claim for damages equivalent to the rent, which is the object of the plaintiff's delay of the obligation against the defendants, has an error of law as to the interpretation and application of Article 587 of the Civil Code, and this affected the conclusion of the judgment, and this part of the judgment of the court below cannot be reversed.

5. Therefore, the part of the judgment of the court below concerning the claim for damages is reversed, and that part of the case is remanded to the court below. The defendants' remaining appeals are all dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-dam (Presiding Justice)