The meaning of "one of the parties" under Article 565 (1) of the Civil Code, and whether the buyer who has commenced the performance after paying the intermediate payment may waive the down payment and rescind the sales contract (negative)

The phrase “one of the parties” under Article 565(1) of the Civil Act refers to either of the parties to a sale and purchase, and does not mean that the other party is limited to the other party. Thus, even if the seller, who is the other party, has not commenced the performance of a sale and purchase contract, the buyer may not waive the down payment under Article 565 of the Civil Act as long as the buyer has already commenced the performance of the contract

Article 565(1) of the Civil Act

[Plaintiff, Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Dong-young and 1 other, Counsel for plaintiff-appellant)

Plaintiff

Korea Land Corporation (Attorney Lee Jae-sung, Counsel for defendant-appellant)

Busan High Court Decision 99Na4290 delivered on October 6, 1999

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

We examine the grounds of appeal.

The phrase “one of the parties” under Article 565(1) of the Civil Act refers to one of the parties to the sale and purchase, and is not limited to the other party (see Supreme Court Decision 70Da105, Apr. 28, 1970).

According to the records, the plaintiff purchased 785.7 square meters from the defendant Corporation on April 8, 1996 ( Address 1 omitted) and 785.7 square meters from the defendant Corporation on the 26th day of the same month ( Address 2 omitted) and paid 1,200 square meters in accordance with the terms and conditions of each contract. Thus, even if the defendant Corporation, as the other party, had not commenced the performance of the above contract, as long as the plaintiff had not commenced the performance of the above contract, the court below is just in holding that the plaintiff waivers the down payment under Article 565 of the Civil Act and cannot cancel each of the above contract, and there is no error in the misapprehension of legal principles as to Article 565 of the Civil Act.

In addition, if the buyer concludes a sales contract by lot for the land of several lots and the buyer has delayed performance, the seller is entitled to exercise the right to cancel the contract on a selective basis or cancel the contract, and even if the contract is not actually rescinded, it is not permissible under the principle of equity or good faith.

All of the grounds of appeal cannot be accepted.

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 Im-soo (Presiding Justice)