A. Whether a sales contract is impossible where a third party’s registration of provisional disposition is entered in real estate for sale purpose (negative)

(b) Where a sales contract is impossible, whether the amount equivalent to the market price at the time of the impossibility of performance is normal damages even if the market price at the time of performance significantly increased compared to that at the time of the contract (affirmative)

C. Criteria for determining whether there exists a cause of comparative negligence in determining the scope of liability for damages due to nonperformance

(d) The case holding that even though a double buyer knew of the fact that the registration of prohibition of disposal of real estate for sale was entered, the act of fully paying the purchase price according to the promise from the seller to liquidate and adjust the registration of provisional disposition under his own responsibility does not constitute a cause of offsetting negligence;

A. Even if the registration of provisional disposition was already made with respect to the real estate for sale purpose by a third party, it is only the effect that it cannot be asserted against the creditor of provisional disposition to the extent inconsistent with it, and it is immediately possible for the debtor to freely dispose of the real estate due to any control relationship on the real estate, not to prohibit the act of the debtor to dispose of the real estate on his own at will, so the contract is not impossible due to the registration of provisional disposition.

B. The scope of liability for compensatory damages due to nonperformance of a sales contract shall be based on the market price of the object of sale at the time of impossibility of performance, and the amount equivalent to such market price shall be considered as ordinary damages. Since the market price at the time of impossibility of performance can be viewed as damages due to special circumstances only when the obligor knows or could have known, the compensation can be claimed as damages. Thus, even if the market price at the time of impossibility of performance significantly increased above that at the time of the contract, the price shall not be deemed as damages due to special circumstances

C. The comparative negligence set-off system under the Civil Act is intended to take into account the obligee’s equivalent care as to the occurrence of damages, in a case where the obligee fails to fulfill his/her duty required under the good faith principle. Thus, even if the obligee’s fault, if the damages were incurred or expanded due to such failure, it shall be deemed that the victim was negligent. The existence of a comparative negligence in determining the scope of liability for damages caused by nonperformance shall be determined comprehensively by comparing the conclusion of the contract at issue in an individual case with the process of performance of the contract at issue and the fault

(d) The case holding that even though a double buyer knew of the fact that the registration of prohibition of disposal of real estate for sale was entered, the act of paying the purchase price in full according to the promise from the seller to liquidate and adjust the registration of provisional disposition under his own responsibility does not constitute a cause of offsetting negligence.

A.B. Article 390 of the Civil Code; Article 393(c) of the Civil Code; Article 396(d) of the Civil Code; Article 588 of the Civil Code

A. Supreme Court Decision 91Da8104 delivered on July 26, 1991 (Gong1991, 2245) 77Da963 delivered on January 10, 197 (Gong1975, 8542) 86Da5672 delivered on June 23, 198 (Gong1987, 123) 90Da6491 delivered on December 7, 199 (Gong191, 427), Supreme Court Decision 92Da6112 delivered on May 12, 1992 (Gong192, 1950), 193Da12939 delivered on June 13, 1992 (Gong197, 1992, 1943)

[Defendant-Appellee] Plaintiff 1 et al.

Defendant 1, Defendant 1 et al., Counsel for the defendant

Daegu High Court Decision 91Na3780 delivered on April 23, 1992

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

The grounds of supplementary appeal are examined as follows. (The grounds of supplementary appeal are to the extent of supplement in the grounds of appeal.)

1. On the first ground for appeal

According to the reasoning of the judgment below, the court below acknowledged that the defendant sold the real estate of this case to the non-party on August 17, 1987 and again sold it twice to the plaintiff on October 17 of the same month, and completed the registration of ownership transfer to the plaintiff on October 23 of the same month. The court below rejected the defendant's assertion that "the defendant is paid 34,00,000 won from the non-party at the same time when he received payment from the non-party on August 17, 1987," and it is hard to find that the defendant's appeal was dismissed on August 28, 1990 and the above judgment became final and conclusive, and it is hard to find that the plaintiff's registration of ownership transfer to the real estate of this case was cancelled on October 30, 1990, and that the contract between the plaintiff and the non-party was concluded prior to the completion of the registration of ownership transfer, and there is no evidence to find that the defendant's allegation that the contract was void due to the non-party's evidence 4 evidence.

2. On the second ground for appeal

(a) Time and scope of damages for nonperformance;

Whether the contract is impossible or not is determined in accordance with the common sense of social transactions, and if there are circumstances that are extremely difficult to implement in the general transaction practice, it is also impossible.

However, even if the registration of provisional disposition was already made with respect to the real estate which was the object of sale, it is only effective to oppose the creditor of provisional disposition within the extent inconsistent with it, and it does not immediately prohibit the debtor from arbitrarily disposing of the real estate due to any control relationship on the real estate. Therefore, the registration of provisional disposition does not immediately lead to the impossibility of execution of the contract. Therefore, the scope of compensatory liability due to the impossibility of performance of the contract should be based on the market price of the object of sale at the time of the impossibility of performance of the contract. The amount equivalent to the market price of the object of sale at the time of the impossibility of performance of the contract should be considered as ordinary damages. Thus, the debtor can claim compensation only if he knows or could have known that the market price at the time of the impossibility of performance of the contract would have become significantly higher than that at the time of the contract. Thus, even if the market price at the time of the impossibility of performance of the contract was significantly higher than that at the time of the contract, the so-called special circumstances cannot be considered as damages.

In the same purport, the court below held that the defendant's obligation to transfer ownership of this case against the plaintiff was impossible due to the completion of the above lawsuit between the defendant and the non-party, and held that the amount of damages at the time is equivalent to the market price at that time is just and the case is not appropriate.

There is no reason for this issue.

(b) Set-off of negligence;

The comparative negligence set-off system under the Civil Act intends to take account of the obligee’s equivalent principle as to the occurrence of damages in accordance with the principle of equity in a case where the obligee fails to fulfill his/her duty required under the principle of good faith. Thus, even though the principle of equity, if the damage was incurred or expanded due to such failure, it can be deemed that the victim was negligent. The existence of a ground for comparative negligence in determining the scope of liability for damages due to nonperformance should be determined comprehensively by comparing both parties’ fault and conclusion of the contract at issue in individual cases.

In this case, the plaintiff did not know that the real estate was already sold to a third party at the time of the purchase from the defendant. In light of the records such as Gap evidence 1-2, 2-2, 3, 4, 10-1, 10-2, and Gap evidence 11, 18-2 and 7, the plaintiff failed to pay the agreed date with the non-party knowing that the provisional disposition against disposal of the above real estate was entered in the process of the execution of the sales contract with the defendant, and the plaintiff did not pay the purchase price of the non-party at the agreed time when the non-party knew that the provisional disposition against disposal of the above real estate had already been sold to a third party. In addition, since the court below borrowed the defendant's statement that the provisional disposition was settled, arranged, and the defendant's right to reject the provisional disposition constitutes a right of the non-party's refusal to pay the purchase price, it cannot be viewed that the plaintiff's right to refuse the provisional disposition constitutes a right of the non-party's refusal to pay the purchase price.

In light of these points and the circumstances leading up to the conclusion and performance of the instant case, the lower court’s rejection of the Defendant’s claim for comparative negligence is eventually justifiable, and there is no error in the misapprehension of legal principles as to the requirements for comparative negligence, as otherwise alleged in the lawsuit. It is without merit.

3. Therefore, the appeal is dismissed, and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Jong-ho (Presiding Justice)