Where a sales contract is partially null and void, the method of demanding the seller to cancel the contract and whether the seller is liable for the delay of performance if the seller fails to perform his/her corresponding obligation even if there is no invalid part (affirmative)

If only a part of the sales contract is invalid and the remainder is valid, the seller's demand for performance is notified that a part of the contract is impossible, and the seller's demand for performance is not legitimate by providing the remainder of the contract that can be performed. If the buyer can assert the whole invalidation of the contract, it is natural that the buyer refuses the performance. However, if the buyer intends to maintain the contract even if there is no invalid part, it is reasonable to assume that the corresponding obligation is responsible for delay of performance.

Articles 137 and 544 of the Civil Act

Plaintiff

Defendant 1 and one other, Defendant 1 et al., Counsel for the defendant-appellant-appellee

Incheon District Court Decision 91Na292 delivered on October 25, 1991

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

1. The gist of the judgment below is as follows.

A. On September 15, 198, the Plaintiff sold 155 square meters of forest land and 55.9 square meters of the instant house to Defendant 1, a building not registered on its land without permission, for the same day, KRW 1,500,000 of the down payment, KRW 3,000 of the intermediate payment on September 22, 198, the Plaintiff paid KRW 16,100,000 of the remainder payment, KRW 6,000 of the lease deposit against the tenant of the instant house, and the remainder of KRW 10,100,000 of the lease deposit against the tenant of the instant house is substituted by the Defendant’s acceptance, and the remainder of KRW 10,100,000 of the housing payment was agreed to be paid on October 2, 198, and the Defendant did not possess part of the housing payment to the Defendant under the status of 100,000,000 of the instant house.

B. As Defendant 1 did not pay KRW 10,100,000 for the above transaction remainder after the due date of the above contract, the Plaintiff notified the cancellation of the above contract on February 1, 1989 on the ground of the Defendant’s default of the above transaction balance, and the Plaintiff is recognized as having agreed to complete the registration of preservation of ownership for the portion 14.5 square meters indicated as the subject matter in the sales contract (Evidence A) among the instant housing, at least after the registration of preservation of ownership was completed on the part 14.5 square meters indicated as the subject matter in the sales contract (Evidence A).

C. Thus, the plaintiff can legally rescind the above sales contract only on the ground of the delay of the performance after providing the duty to register the transfer of ownership under the above agreement and demanding the payment of the remaining purchase price to the defendant 1. However, since there is no evidence that the plaintiff could have been recognized as such, the cancellation of the above sales contract is unlawful.

D. In relation to this, the plaintiff was originally impossible to register the ownership of the housing in this case as an unauthorized building. Accordingly, the plaintiff was well aware of the situation at the time of the conclusion of the above sale contract, and the same defendant was also aware of it. The above defendant purchased the housing in this case as the object of sale without interest, and the terms "the seller transfers the housing to the seller after the registration of the preservation," which is the proviso of the sale contract (Evidence A No. 1) of this case, "the seller transfers the housing in this case to the seller after the registration of the preservation," not because of the above circumstances, but because the above contract was concluded with the state without the registration of the transfer, the above contract was concluded with the defendant after the completion of the registration of the transfer of ownership transfer, and therefore, the above contract was concluded with the above defendant after the completion of the registration of ownership transfer, but the above contract was written with the terms on the preservation registration and the registration of transfer, and therefore, it cannot be acknowledged that the plaintiff's right to the above sale contract was invalid at the time of the plaintiff's cancellation of the above sale without permission.

E. If so, the plaintiff's request for surrender, which is based on the premise that the above sales contract was lawfully rescinded, is without merit.

2. According to the fact-finding conducted by the court of first instance against the head of the Incheon Namdong-gu, Incheon, the first instance court and the non-party witness of the court below who arranged the sales contract of this case, and the witness witness of the court below who participated in the sales contract of this case, the housing of this case was originally 14.5 square meters, which was extended by the plaintiff, but thereafter 14.5 square meters had been registered in the unauthorized Building Management Register, and the previous 14.5 square meters had been registered in the unauthorized Building Management Register, and thus, it can be recognized that the above proviso clause was stated in the meaning of the transfer registration in the name of defendant 1 after the preservation registration of this case in the plaintiff. Thus, the court below's fact-finding as to the contents and proviso

3. If the facts are the same, unless the above sales contract is invalid, the plaintiff should provide not only the land but also the housing of this case with the performance of the obligation to transfer ownership to Defendant 1, but also can lawfully demand the payment of the remaining amount and leave the same defendant in delay. Thus, the plaintiff's termination of the contract can not be deemed lawful.

However, if the registration of ownership preservation of the existing 14.5 square meters of the housing of this case was originally impossible, it is correct to regard the part of the contract of this case as null and void. In such a case, in principle, it shall be deemed null and void under Article 137 of the Civil Act, and if it is deemed that the whole contract of this case was performed even without the invalid part, the remaining part shall be deemed null and void. If the whole contract of this case is null and void, there is no problem of cancellation of contract. If only a part is valid and the remainder is valid, the plaintiff, who is the seller, shall be notified that the whole contract of this case is null and void, and shall notify the performance by providing the remaining part that can be performed. If the plaintiff, who is the seller, notified that the part of the contract of this case is impossible, and the peremptory notice of performance by denying or disregarding the registration agreement of the housing of this case cannot be deemed legitimate, and if defendant 1, the buyer, is natural to refuse the performance of the contract, but there is no corresponding reason to maintain his obligation.

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.

Justices Kim Jong-soo (Presiding Justice)