이 책은 영미계약법의 원리를 평면적으로 서술하기보다는 영미법의 역동적 역사를 통해 그 원리를 발견하여 체계적으로 망라하는데 중점을 두었다. 오랜 세월에 걸쳐 발전되어 온 영미계약법의 원리를 계약법 구조의 전체 틀 속에서 전반적으로 다루어 영미계약의 체계와 특징을 한눈에 파악할 수 있도록 꾸며져 있다. 다양한 실제 사례의 해답을 찾는 과정에서 정립된 영미계약법상 세밀한 원리들은 국제거래나 영문계약서를 수시로 접하게 되는 기업 실무자들이나 법조인은 물론 영미법의 역사와 계약법에 관심을 가진 모든 이들에게 알찬 지식과 정보를 제공하고, 독자들이 맞닥뜨릴 수 있는 현실의 복잡한 법률문제에 대한 시사점과 합리적 해결책을 제시해 주고 있다. 영미계약법 원리와 연관된 유용한 영어 표현이나 용어들 또한 꼼꼼히 정리되어 있어 독자들의 영어 실력을 한 단계 더 향상시켜 줄 것이다.
CHAPTER 1. 영미 역사와 영미법의 발전
Ⅰ. 역사 속 법률과 제도 ····························································································· 3
1. 자본주의 경제의 발전과 계약자유의 원칙 ··························································· 3
2. 계약법 원리와 공정거래 또는 소비자보호의 문제 ··········································· 4
3. 영미 역사의 이해와 영미법 원리 ··········································································· 6
Ⅱ. 영국역사와 Common Law의 기원 및 전개 ·························································· 7
1. 영국역사와 Common Law의 유래 ········································································ 7
2. 고대 및 로마시대 ·····································································································9
3. 앵글로색슨시대 ········································································································10
4. 노르만의 정복왕 윌리엄과 헨리 1세 ··································································· 12
5. 헨리 2세의 플랜태저넷 왕조의 개창과 사법체제의 정비 ······························· 16
5.1 플랜태저넷(Plantagenet) 왕조의 개창과 왕권강화 16
5.2 헨리 2세의 사법체제의 정비 17
5.2.1 Common Law(보통법)와 재판제도의 개혁 _ 17
5.2.2 헨리 2세의 사법제도 개혁의 의미와 리처드 1세의 왕위 계승 _ 19
6. 존 왕과 마그나카르타(Magna Carta) ··································································· 19
7. 시몽 드 몽포르(Simon de Montfort)와 의회제도의 기원 ······························ 20
8. 튜더시대(Tudor Dynasty) ······················································································· 22
8.1 백년전쟁과 장미전쟁 22
8.2 튜더 왕조의 개창과 헨리 8세 23
8.3 엘리자베스 여왕과 식민제국의 건설 24
9. 스튜어트 왕조(Stuart Dynasty) ············································································· 26
9.1 스튜어트 왕조의 개창과 권리청원(Petition of Right) 26
9.2 명예혁명과 권리장전(Bill of Rights) 27
10. 하노버 왕조와 윈저 왕조 ····················································································· 29
10.1 하노버 왕조와 내각책임제의 발전 29
10.2 빅토리아 여왕과 대영제국 32
10.3 윈저 왕조 33
Ⅲ. 미국역사와 영미법의 발전 ·················································································· 33
1. 북아메리카 신대륙의 발견과 영국의 식민지 개척 ··········································· 33
2. 미국의 독립 ····································································································· 35
3. 미국연방헌법(US Constitution)과 영미법의 발전 ············································· 36
4. 세계 최강국 미국과 법치주의의 확립 ·······························································39
5. 미국의 법률체계(US legal system)와 법원체계(court system)의 이해 ······· 40
CHAPTER 2. 영미법의 특징 및 법원(Authority)
Ⅰ. 개 관 ···················································································································45
1. 영미법체계(common law system)와 대륙법체계(civil law system) ············ 45
2. 대륙법(civil law)의 기원과 전개 ·········································································· 46
3. 대륙법체계(civil law system)의 특징 ·································································· 47
Ⅱ. 영미법체계의 발전과 특징 ·················································································· 47
1. 영미법체계(common law system)의 의미 ························································· 47
2. 영미법(common law)의 기원과 발전 ·································································· 48
3. 영미법체계(common law system)의 특징 ························································· 50
4. 영미법상 배심원제도(jury system) ······································································· 52
4.1 배심원제도의 유래 및 역사 52
4.2 배심제도의 내용 54
4.3 미국의 배심제도 55
4.4 배심제도의 비판과 의의 57
5. Common Law(보통법)와 Equity(형평법) ························································· 57
6. 영미법(common law)과 대륙법(civil law)의 구별점과 융합 ························ 64
Ⅲ. 영미법의 법원(Authority) 및 검토방법 ···························································· 66
1. 영미법(common law)의 법원(authority)에 대한 이해 ···································· 66
2. 미국의 연방법체계에서 법원(sources of federal law) ···································· 67
3. 영미법계 법규범의 검토방법(legal research process) ····································· 68
4. 판례법(case law)의 검토 ················································································· 69
CHAPTER 3.영미 계약법의 체계 및 적용법규범
Ⅰ. 계약법의 원리와 역할 ···························································································· 73
1. 경제활동과 영미계약법의 원리 ············································································· 73
2. 영미계 계약법과 대륙법계 계약법 ······································································· 74
3. 영미계약법의 체계 ·································································································75
Ⅱ. 영미계약법의 기원과 발전 ·························································································76
1. 로마법상 계약법의 기원 ························································································· 76
2. 잉글랜드의 초기 계약법 이론 ··············································································· 77
3. 약속의 강제성에 관한 이론적 발전과 영미계약법 원리의 정착 ··················· 80
3.1 Assumpsit의 개발과 계약의 강제성에 대한 이론의 발전 80
3.2 General Assumpsit의 허용과 장래이행의 약속의 강제성의 인정 81
3.3 Consideration개념의 발전과 영미계약법 이론의 정착 85
Ⅲ. 영미계약법상 계약의 역할과 의미 ············································································· 87
1. 영미계약법상 계약의 역할 ····················································································· 87
2. 영미계약법상 계약의 의미 ····················································································· 88
Ⅳ. 영미계약법 체계의 특징 및 계약의 유형 ································································ 91
1. 영미계약법 체계의 주요 특징 ··············································································· 91
1.1 Promise(약속)와 Legal Enforceability(법적 강제력) 91
1.2 Consideration(대가관계) 92
1.3 Statute of Frauds(사기방지법)와 Parol Evidence Rule(구두증거배제의 원리 93
1.4 Equitable Remedy(형평법상 구제방법)와 Quasi–Contract(준계약) 93
2. 영미계약법상 계약의 유형 ····················································································· 95
2.1 Bilateral Contract(쌍방계약)와 Unilateral Contract(일방계약) 95
2.2 계약의 성립방식에 따른 분류 96
2.3 계약의 유효성에 따른 분류 97
Ⅴ. 영미계약법의 적용법규범 ····························································································· 98
1. 개 관 ························································································································· 98
2. Common Law와 Restatement ··········································································· 100
3. 영미계약법과 Restatement Second of Contracts ········································ 101
4. 모델법전(model code)과 UCC ··········································································· 102
5. Common Law와 UCC의 관계 ··········································································· 104
Ⅵ. 국제계약의 주요 법원(Sources of Law) ····························································· 105
1. 영미계약법과 국제거래의 적용법규범 ······························································· 105
2. CISG(국제물품매매계약에 관한 유엔협약) ······················································· 107
2.1 CISG의 배경 및 구성 107
2.2 국제계약과 CISG의 내용 및 적용 107
3. INCOTERMS(국제무역거래조건) ········································································ 108
3.1 INCOTERMS의 배경 및 특징 108
3.2 INCOTERMS상의 개별 무역조건과 그 적용 110
3.3 INCOTERMS와 UCC 112
CHAPTER 4.계약의 성립 (Contract Formation)
Ⅰ. 개 관 ················································································································ 115
1. 계약의 성립(contract formation)과 법적 강제가능성(legal enforceability) ··· 115
2. 계약당사자간 상호동의(mutual assent) ····························································· 115
3. 계약당사자간 대가관계(consideration)의 존재 ················································ 116
4. 계약의 성립에 대한 항변사유(defenses) ·························································· 117
Ⅱ. Offer(청약) ············································································································118
1. 청약(offer)의 의미 ·································································································· 118
2. 청약의 유인(invitation to offer) ········································································· 119
3. 청약의 요건 ········································································································· 121
3.1 계약체결의 의사표시(intent to enter into a bargain) 121
3.2 청약내용의 명확성(certainty and definiteness in its terms) 122
3.2.1 청약내용의 명확성의 의미 _ 122
3.2.2 Requirements Contract와 Output Contract의 문제 _ 124
3.3 피청약자와의 의사소통 125
4. 청약의 효력발생 및 효과 ····················································································· 126
5. 청약의 종료(termination of offer) ····································································· 126
5.1 청약의 철회(revocation of offer) 126
5.1.1 청약철회의 방법 _ 127
5.1.2 청약철회의 효력 _ 127
5.1.3 청약자의 청약철회의 제한(irrevocable offers) _ 128
(1) Option Contract(옵션계약) _ 129
(2) Firm Offer Rule(확정청약의 원리) _ 131
(3) Promissory Estoppel(약속에 의한 금반언) 또는 Detrimental Reliance(불이익적 신뢰) _ 133
(4) 일방계약(unilateral contract)과 피청약자의 이행의 시작 _ 134
5.2 청약의 거절(rejection of offer) 135
5.2.1 Counteroffer(반대청약) _ 136
5.2.2 Conditional Acceptance(조건부 승낙) _ 138
5.2.3 Common Law상 Mirror Image Rule(경상의 원칙)과 UCC의 원칙 _ 138
(1) Mirror Image Rule(경상의 원칙) _ 138
(2) UCC의 경우 _ 139
5.3 법의 작용(operation of law)에 의한 청약의 종료 141
5.4 시간의 경과(lapse of time)에 의한 청약의 종료 142
Ⅲ. Acceptance(승낙) ····································································································· 143
1. 승낙(acceptance)의 의미 ······················································································ 143
2. 승낙의 효력발생시기 ····························································································· 144
3. 승낙의 요건 ··········································································································· 145
3.1 승낙권한 있는 자의 승낙 145
3.2 승낙의 명확성(unequivocal acceptance) 146
3.2.1 Battle of the Forms(양식간 다툼)의 문제 _ 146
3.2.2 Common Law의 원리–Mirror Image Rule(경상의 원칙) _ 148
3.2.3 UCC에 따른 동산물품매매계약의 경우 _ 149
(1) No Mirror Image Rule _ 149
(2) 당사자 일방 또는 전부가 상인이 아닌 경우 _ 150
(3) 양 당사자가 상인인 경우 _ 150
3.3 청약자에 대한 승낙의 의사표시 153
3.4 승낙의 판단기준 154
4. 승낙의 방법 ············································································································· 155
4.1 피청약자가 이행을 시작하는 경우 155
4.2 피청약자가 이행을 약속한 경우 156
4.3 피청약자가 우편을 통해 승낙을 한 경우 157
4.3.1 청약내용으로 승낙의 효력발생시기가 정해진 경우 _ 157
4.3.2 청약을 거절한 이후 승낙을 한 경우 _ 157
4.3.3 승낙을 한 후 청약거절을 한 경우 _ 158
4.3.4 승낙을 한 후 청약철회가 있는 경우 _ 159
4.3.5 옵션계약(option contract)의 경우 _ 159
5. 동산물품매매계약에서 매도인이 잘못된 물품(wrong goods)을 보내온 경우 ···160
6. 피청약자가 침묵하는 경우 ··················································································· 162
Ⅳ. Consideration ······································································································ 163
1. Consideration의 의미 ··························································································· 163
2. Consideration의 요건 ··························································································· 165
2.1 당사자간 거래되는 대가의 교환성(bargained–for exchange) 166
2.2 대가의 법적인 가치(legal value) 167
3. Consideration과 관련된 주요 이슈들 ······························································· 170
3.1 Pre–Existing Duty의 문제 170
3.1.1 Pre–Existing Duty Rule _ 170
3.1.2 Pre–Existing Duty Rule의 예외 _ 172
3.2 Past Consideration 177
3.3 Existing Debts의 문제 178
3.4 Illusory Promise의 문제 182
3.4.1 조건부 약속(conditional promise)과 신의성실의 의무(duty of good faith)_ 183
3.4.2 계약의 해제권에 제한이 있는 경우 _ 184
3.4.3 Requirements Contract와 Output Contract의 경우 _ 185
3.4.4 계약이행에 대한 합리적 노력의무(duty of reasonable efforts) _ 187
3.4.5 취소가능한 약속(voidable promise)의 경우 _ 188
3.4.6 보증계약(suretyship contract)의 경우 _ 188
3.4.7 일방계약(unilateral contract)과 옵션계약(option contract)의 경우 _ 189
3.5 부제소의 합의(contract not to sue)와 Consideration 189
4. 대가관계의 대체물(substitutes for consideration) ·········································· 190
4.1 Promissory Estoppel(약속에 의한 금반언) 191
4.1.1 Consideration과 Promissory Estoppel _ 191
4.1.2 Promissory Estoppel의 요건 _ 193
4.2 법에 의해 제한된 법적 의무에 대한 새로운 서면약속(written promise) 195
4.3 날인증서 또는 서명문서에 의한 약속과 대가관계(consideration)의 문제 197
5. 계약변경(modification)과 대가관계(consideration) ········································ 198
5.1 Common Law의 경우 199
5.2 UCC의 경우 199
Ⅴ. 항변사유(Defenses)의 부존재 ················································································· 200
1. 계약의 성립(contract formation)과 항변사유(defenses) ······························· 200
2. Statute of Frauds(사기방지법)와 계약의 서면성 ·········································· 201
2.1 Statute of Frauds(사기방지법)의 역사적 배경과 주요 이슈 202
2.2 Statute of Frauds(사기방지법)와 Parol Evidence Rule(구두증거배제의 원리) 203
2.3 Statute of Frauds(사기방지법)의 적용대상이 되는 계약 204
2.3.1 보증계약(suretyship contract)의 경우 _ 206
(1) 보증계약(suretyship contract)의 의미 _ 206
(2) Statute of Frauds가 적용되는 보증계약의 범위 _ 207
① 보증계약과 주된 목적의 원칙(main purpose rule) _ 207
② Statute of Frauds가 적용되지 않는 보증계약 _ 209
2.3.2 계약체결일로부터 1년 이내에 이행될 수 없는 계약 _ 210
2.3.3 부동산상 이익의 매매에 관한 계약(contract for the sale of an interest in land) _ 212
2.3.4 500달러 이상의 동산물품매매계약(contract for sale of goods for $500 or more) _ 214
2.3.5 결혼의 대가로 이루어진 계약 _ 216
2.3.6 상속재산관리인(executor or administrator)의 상속재산상 채무의 변제약속 _ 217
2.4 Statute of Frauds(사기방지법)의 충족방법 217
2.4.1 서명한 문서(signed writing)에 의한 사기방지법의 충족 _ 217
(1) Common Law의 경우 _ 218
(2) UCC에 따른 동산물품매매계약의 경우 _ 221
① 상인 간의 거래가 아닌 경우 _ 221
② 상인 간 거래의 경우 _ 222
2.4.2 이행(performance)에 의한 사기방지법의 충족 _ 223
(1) 동산물품매매계약(contract for sale of goods)의 경우 _ 223
① 물품의 일부 인도 등 일부이행(part performance)이 이루어진때 _ 223
② 매수인을 위해 특수 제작된 물품(specially manufactured goods)의 경우 _ 225
(2) 부동산거래계약(real estate transfer contract)의 경우 _ 226
(3) 서비스계약(service contract)의 경우 _ 228
2.5 Statute of Frauds(사기방지법)와 계약의 효력 229
2.5.1 Statute of Frauds에 따르지 않은 계약의 효력 _ 229
2.5.2 Statute of Frauds와 이득반환(restitution)의 문제 _ 231
2.6 Statute of Frauds(사기방지법)와 관련된 이슈 232
2.6.1 Statute of Frauds와 신뢰보호(reliance)의 문제 _ 232.
2.6.2 Statute of Frauds와 계약의 변경(modification) _ 233
(1) Common Law의 경우 _ 234
(2) UCC의 경우 _ 235
2.6.3 Statute of Frauds와 동등가치의 법리(equal dignity rule) _ 237
3. 법률상 무능력자(legal incapacity)의 행위 ······················································· 237
4. 계약의 불법성(illegality)과 공서양속(public policy) 위반의 경우 ············· 241
5. Mistake(착오)의 문제 ···············································································242
5.1 Mistake(착오)의 의미 242
5.2 착오(mistake)의 유형과 예측실패(misprediction)와의 구별 243
5.3 당사자 쌍방의 착오(mutual mistake) 245
5.3.1 당사자 쌍방 착오(mutual mistake)의 요건 _ 245
(1) 기본적 가정(basic assumption)에 대한 착오 _ 245
(2) 착오로 인한 당사자의 이행에 대한 중대한 영향(material effect) _ 246
(3) 당사자의 착오로 인한 위험 감수(bear the risk)의 문제 _ 247
5.3.2 착오 당사자(mistaken party)의 구제 _ 248
5.4 당사자 일방의 착오(unilateral mistake) 248
6. Misrepresentation(부실표시/허위진술)의 문제 ··············································· 250
6.1 Misrepresentation(부실표시/허위진술)의 의미 250
6.2 Misrepresentation(부실표시/허위진술)의 유형 251
6.3 Misrepresentation(부실표시/허위진술)의 요건 252
6.3.1 사실에 부합하지 않는 표시나 주장 _ 253
(1) 사실에 부합하지 않는 표시나 주장의 내용 _ 253
(2) 사실의 미공개(nondisclosure)와 Misrepresentation의 문제 _ 254
6.3.2 사기적(fraudulent) 또는 중요한(material) 사실에 대한 부실표시 _ 256
6.3.3 상대방의 정당한 신뢰(justifiable reliance) _ 257
6.4 Misrepresentation(부실표시/허위진술)과 구제수단(remedies) 260
7. Duress(강박) 및 Undue Influence(부당압력)의 문제 ································· 262
7.1 Duress(강박)의 문제 263
7.1.1 Duress(강박)의 의미와 요건 _ 263
7.1.2 Duress(강박)의 효과 _ 266
7.2 Undue Influence(부당한 압력)의 문제 267
8. Unconscionability(비양심성)의 문제 ································································ 269
8.1 비양심성의 원리(doctrine of unconscionability) 및 비양심성의 개념 270
8.2 절차적 비양심성(procedural unconscionability)과 실체적 비양심성
(substantive unconscionability)의 문제 --------------------------------- 271
8.3 비양심성의 판단 및 피해자의 구제 273
9. 불공정거래의 법규상 제한의 문제 ································································· 275
Ⅵ. Modification of Contract(계약의 변경) ·························································· 277
1. 당사자간 합의에 의한 계약변경 ········································································· 277
1.1 Common Law의 경우 277
1.2 UCC의 경우 278
1.3 계약변경(modification)과 Statute of Frauds의 문제 ································279
2. 법의 작용(operation of law)에 의한 계약변경 ·············································· 281
CHAPTER 5.계약의 이행(Performance)
Ⅰ. 계약의 이행 및 이행의 조건 ·········································································· 285
1. Performance of Contract(계약의 이행) ·························································· 285
2. Performance Condition(계약이행의 조건) ····················································· 285
Ⅱ. 계약이행 조건의 의미 및 유형 ·········································································287
1. Express Condition 및 Constructive Condition ··········································· 288
2. Condition Concurrent; Condition Precedent; Condition Subsequent ··· 289
3. True Condition 및 Condition coupled with a Covenant ······················ 290
Ⅲ. 계약이행 조건의 충족방법 ························································································· 291
1. Express Condition(명시적 조건)과 Strict Compliance Rule(엄격준수의 원칙) ······ 291
2. 계약당사자 일방의 만족을 조건으로 하는 계약의 문제 ······························· 293
3. Constructive Condition(의제조건)의 경우 ····················································· 294
3.1 Substantial Performance Rule(상당이행의 원칙)과 Perfect Tender Rule(완전제공의 원칙) 295
3.1.1 Common Law와 Substantial Performance Rule(상당이행의 원칙) _ 295
3.1.2 UCC와 Perfect Tender Rule(완전제공의 원칙) _ 297
3.2 Divisible Contract(가분계약)와 Installment Contract(할부계약) 297
3.2.1 Common Law상 Divisible Contract(가분계약) _ 297
3.2.2 UCC상 Installment Contract(할부계약) _ 300
Ⅳ. 동산물품매매계약의 이행의 특칙 ·········································································· 301
1. 매도인의 권리와 의무 ··························································································· 302
1.1 매도인의 이행의 제공 302
1.1.1 Perfect Tender Rule(완전제공의 원칙) _ 302
1.1.2 Cure(하자의 치유) _ 302
1.2 매도인의 목적물의 인도의무(duty of delivery) 304
1.2.1 운송인을 통한 목적물 인도계약(carrier contracts)의 경우 _ 304
1.2.2 운송인을 통하지 않은 목적물 인도계약(non–carrier contracts)의 경우 _ 305
2. 매수인의 권리와 의무 ·················································································· 306
2.1 매수인의 권리 307
2.1.1 인도된 물품의 검사권(right to inspection of goods) _ 307
2.1.2 물품의 거절권(rejection of the goods) _ 308
2.1.3 물품의 인수권(acceptance of the goods) _ 309
2.1.4 물품인수의 철회권(revocation of acceptance of the goods) _ 310
2.2 매수인의 의무 311
2.2.1 목적물의 인도를 운송인에 의해 하는 경우(carrier contracts) _ 312
2.2.2 목적물의 인도를 운송인에 의하지 않는 경우(non–carrier contracts) _ 312
2.2.3 수표에 의한 대금지급의 문제 _ 312
3. Installment Contract(할부계약)의 문제 ··························································· 313
CHAPTER 6.계약상 의무 이행책임의 면제 (Excuse for Nonperformance)
Ⅰ. 개 관 ·················································································································319
Ⅱ. 조건의 불성취 또는 면제에 의한 이행책임의 면제 ············································ 320
1. 조건의 불성취(failure of condition)에 의한 이행책임의 면제 ··················· 320
2. 조건의 면제(excuse of condition)에 의한 이행책임의 면제 ······················ 321
2.1 Express Condition(명시적 조건)의 면제사유 321
2.1.1 Promissory Estoppel(약속에 의한 금반언) _ 322
2.1.2 Waiver of Condition(조건의 포기) _ 323
2.2 Constructive Condition(의제조건)과 조건면제의 문제 326
2.3 Concurrent Condition(동시이행의 조건)과 조건면제의 문제 328
2.4 권리상실(forfeiture)을 피하기 위한 조건면제의 문제 332
Ⅲ. 상대방의 계약위반에 의한 이행책임의 면제 ························································ 333
1. Common Law의 경우 ·························································································· 334
2. UCC의 경우 ·········································································································336
Ⅳ. Anticipatory Repudiation(이행기 도래 전 이행거절)에 의한 이행책임면제 ··336
1. Anticipatory Repudiation(이행기 도래 전 이행거절)의 의미 및 배경 ··· 336
2. Anticipatory Repudiation(이행기 도래 전 이행거절)의 요건 ···················· 338
3. Anticipatory Repudiation(이행기 도래 전 이행거절)의 효과 ···················· 340
4. 이행거절의 철회(retraction)와 적정이행의 보증(adequate assurance) ····· 342
4.1 이행거절의 철회(retraction of anticipatory repudiation) 342
4.2 적정이행의 보증(adequate assurance) 344
4.2.1 적정이행의 보증(adequate assurance)의 요건과 판단 _ 344
4.2.2 적정이행의 보증(adequate assurance)의 효과 _ 347
Ⅴ. 사후 계약 또는 의사표시에 의한 이행책임의 면제 ············································ 348
1. 개 관 ················································································································ 348
2. Rescission(계약의 취소/해제) ············································································· 349
2.1 Unilateral Rescission(계약의 일방적 취소/해제) 350
2.2 Rescission Agreement(계약취소/해제의 합의) 351
3. Accord and Satisfaction(대물변제) ·································································· 353
4. Substituted Contract(대체계약)과 Substituted Performance(대체이행) ··· 355
5. Novation(경개) ·································································································· 357
Ⅵ. 사후의 예측하지 못한 사정에 의한 이행책임의 면제 ········································ 358
1. 개 관 ················································································································ 358
2. Impossibility(이행불능) ························································································ 361
2.1 Impossibility(이행불능)의 의미 361
2.2 Impossibility(이행불능)의 인정사유와 효과 361
3. Impracticability(실행의 곤란성) ········································································· 365
3.1 Impracticability(실행의 곤란성)의 의미 365
3.2 Impracticability(실행의 곤란성)의 인정요건 366
3.3 Impracticability(실행의 곤란성)의 효과 369
4. Frustration of Purpose(계약상 목적달성의 좌절) ········································ 370
Ⅶ. 계약목적물에 대한 위험부담과 이행책임의 면제 ················································ 373
1. 계약목적물의 이행책임의 면제와 위험부담(risk of loss)의 문제 ··············· 373
2. 계약목적물의 특정과 소유권의 이전 ································································· 374
2.1 물품매매계약상 목적물의 특정(identification of goods) 374
2.2 소유권의 이전(passing of title) 376
3. 위험부담(risk of loss)의 문제 ············································································· 377
3.1 당사자간 위험부담에 관한 합의나 당사자 일방의 계약위반이 있는 경우 378
3.2 계약당사자 쌍방의 과실 없이 목적물이 손상된 경우 379
3.2.1 운송인을 통한 목적물 인도계약(carrier contracts)의 경우 _ 380
3.2.2 운송인을 통하지 않은 목적물 인도계약(non–carrier contracts)의 경우 _ 384
3.3 Sale on Approval(승인조건부 판매)과 Sale or Return(반납조건부 판매) 386
CHAPTER 7.계약위반(Breach)과 규제방법 (Remedies)
Ⅰ. 개 관 ················································································································ 389
Ⅱ. Breach of Contract(계약위반) ············································································ 390
1. 개 관 ······················································································································· 390
2. Common Law의 경우 ·························································································· 391
2.1 Material Breach(중대한 계약위반)와 Minor Breach(경미한 계약위반) 391
2.1.1 계약위반의 중대성(materiality)의 판단 _ 392
2.1.2 중대한 계약위반(material breach)과 계약 이행기의 문제 _ 393
2.2 Material Breach(중대한 계약위반)와 Substantial Performance(상당한 이행) 394
2.3 중대한 계약위반(material breach)과 상대방의 이행중단 또는 계약해지의 문제 396
2.3.1 중대한 계약위반(material breach)과 상대방의 이행중단(suspension of performance) _ 397
2.3.2 전면적 계약위반(total breach)과 상대방의 계약해지(termination of the contract) _ 398
2.3.3 분납대금(money in installments)의 지급의무와 전면적 계약위반(total breach)의 문제 _ 400
3. UCC의 경우 ···········································································································401
3.1 Perfect Tender Rule(완전제공의 원칙) 401
3.1.1 매수인의 물품 거절권(rejection of the goods) _ 402
3.1.2 매수인의 물품 인수권(acceptance of the goods) _ 404
3.1.3 매수인의 물품인수의 철회권(revocation of acceptance of the goods) _ 405
3.2 Perfect Tender Rule(완전제공의 원칙)과 단일인도계약(single delivery contract) 406
3.3 Perfect Tender Rule(완전제공의 원칙)과 할부계약(installment conct) 407
3.4 Perfect Tender Rule(완전제공의 원칙)과 물품하자의 치유(cure) 409
3.4.1 계약상 이행기가 경과되지 않은 경우 _ 410
3.4.2 계약상 이행기가 경과된 경우 _ 410
Ⅲ. Remedies(계약위반시 구제방법) ············································································· 411
1. 개 관 ······················································································································· 411
2. Common Law와 금전적 손해배상(monetary remedies) ····························· 412
2.1 손해의 기본원리와 손해배상의 유형 413
2.1.1 손해의 기본적 원리와 전보적 손해(compensatory damages) _ 414
(1) Expectation Damages(기대이익의 배상) _ 414
(2) Reliance Damages(신뢰이익의 배상) _ 416
(3) Restitution Damages(이득반환/원상회복) _ 418
2.1.2 부가적 손해와 손해배상의 제한(limitations) _ 420
(1) Consequential Damages(결과적 손해배상)의 문제 _ 421
① Consequential Damages(결과적 손해)와 예견가능성 (foreseeability) _ 421
② 예견가능성(foreseeability)의 의미 _ 424
③ Consequential Damages(결과적 손해)가 주로 문제되는 경우 _ 425
(2) Incidental Damages(부수적 손해배상)의 문제 _ 426
(3) Avoidable Damages(회피가능한 손해)와 손해배상의 제한 _ 427
① Avoidable Damages(회피가능한 손해)의 문제 _ 427
② Avoidability(회피가능성)의 의미 _ 428
③ Avoidable Damages(회피가능한 손해)가 주로 문제되는 경우 _ 428
(4) Uncertainty(불확실성)와 손해배상의 제한 _ 431
2.1.3 Liquidated Damages(손해배상액의 예정) _ 434
(1) Liquidated Damages(손해배상액의 예정)와 Penalty(위약벌) _ 435
(2) Liquidated Damages(손해배상액의 예정)의 인정요건 _ 436
2.1.4 Punitive Damages(징벌적 손해배상)와 Nominal Damages (명목적 손해배상) _ 439
(1) Punitive Damages(징벌적 손해배상) _ 439
(2) Nominal Damages(명목적 손해배상) _ 441
2.1.5 Recovery for Emotional Disturbance(정신적 손해배상) _ 442
2.2 손해배상액 산정의 일반원리(general measure of damages) 443
2.2.1 손해배상액의 산정과 전면적(total) 또는 부분적(partial) 계약위반(breach)의 문제 _ 444
2.2.2 손해배상액 산정의 고려사항 _ 444
(1) 계약위반에 따른 피해당사자의 가치의 손실(loss in value) _ 445
(2) 계약위반에 따른 피해당사자의 부가적 손해 _ 446
(3) 계약취소에 따른 피해당사자의 회피된 비용(cost avoided)의 공제 _ 447
(4) 계약취소에 따른 피해당사자의 회피된 손실(loss avoided)의 공제 _ 447
2.2.3 구체적 손해배상액의 산정문제 _ 447
(1) 공급자의 경우 _ 447
(2) 수령인의 경우 _ 448
(3) 상실된 물량(lost volume)의 문제 _ 450
3. 형평법상 구제방법(equitable remedies) ··························································· 452
3.1 형평법상 구제방법의 역사적 발전 452
3.2 형평법상 구제방법의 제한 문제 454
3.3 형평법상 주요 구제수단 456
3.4 Specific Performance(특정이행) 456
3.4.1 계약위반과 특정이행의 명령 _ 456
3.4.2 특정이행(specific performance)과 적정성 검토(adequacy test) _ 458
(1) 손해산정의 불확실성(uncertainty of damages)이 있는 경우 _ 458
(2) 계약 목적물의 대체품(substitute)을 구하기 어려운 경우 _ 459
(3) 동산물품매매계약(contract for sale of goods)의 경우 _ 460
(4) 사적 용역계약(personal service contract)의 경우 _ 461
(5) 손해배상을 받기 어려운 사정이 있는 경우 _ 462
(6) 특정이행과 손해배상 등 다른 구제수단과의 관계 _ 463
3.4.3 특정이행의 제한 _ 464
(1) 불명확성(indefiniteness)에 의한 제한 _ 465
(2) 불공정성(unfairness)에 의한 제한 _ 465
(3) 공서양속(public policy)에 의한 제한 _ 466
(4) 불확실성(insecurity)에 의한 제한 _ 467
(5) 이행의 강제(enforcement) 또는 감독(supervision)의 곤란에 의한 제한 _ 467
3.5 Injunction(금지명령) 468
3.5.1 특정이행(specific performance)과 금지명령(injunction) _ 468
3.5.2 금지명령(injunction)의 인정범위와 요건 _ 469
3.6 Termination(계약의 해지)과 Rescission(계약의 취소/해제)의 문제 472
4. UCC상 구제방법 ····································································································· 475
4.1 개 관 475
4.2 매수인의 구제방법 475
4.2.1 계약의 취소(cancellation of the contract) _ 476
4.2.2 물품의 거절(rejection of the goods) _ 476
4.2.3 물품인수의 철회(revocation of acceptance of the goods) _ 477
4.2.4 특정이행(specific performance) 또는 물품회수청구(replevin) _ 478
4.2.5 매수인의 손해배상청구(monetary damages) _ 479
4.3 매도인의 구제방법 482
4.3.1 물품인도의 보류(withholding of the goods) _ 482
4.3.2 물품의 반환 또는 회수(reclamation of the goods) _ 482
4.3.3 물품의 재판매(resale) _ 484
4.3.4 매도인의 손해배상청구(monetary damages) _ 485
4.3.5 매수인의 선급금(buyer’s deposits)과 매도인의 이득반환청구(seller’s restitution) _ 488
4.4 UCC상 동산물품매매의 손해배상 산정방법 요약 및 당사자의 손해경감의무 489
4.4.1 UCC상 동산물품매매계약 당사자간의 손해배상 산정방법 요약 _ 489
4.4.2 당사자의 손해경감의무(avoidable damages) _ 489
4.5 소멸시효(statute of limitations) 491
5. Restitution(이득반환/원상회복)의 문제 ···························································· 492
5.1 Restitution의 의미와 배경 492
5.2 계약위반(breach of contract)과 Restitution(이득반환) 494
5.2.1 계약위반(breach of contract)의 구제방법으로서 Restitution (이득반환) _ 494
5.2.2 계약위반자(defaulting party)의 이득반환청구권(restitutionary right)의 문제 _ 497
5.3 Quasi–Contract(준계약)와 Restitution(이득반환) 500
5.3.1 Quasi–Contract(준계약)의 의미와 배경 _ 500
5.3.2 Quasi–Contract(준계약)와 묵시적 계약(contract implied–in–fact) _ 501
5.3.3 Quasi–Contract(준계약)에 따른 Restitution(이득반환)의 문제 _ 502
(1) Quasi–Contract(준계약)와 형평법상 구제방법(equitable remedy) _ 502
(2) Quasi–Contract(준계약)에 따른 Restitution(이득반환)의 발생원인과 요건 _ 503
(3) Volunteer(자원자)와 Restitution(이득반환)의 문제 _ 505
(4) Quasi–Contract(준계약)와 Restitution Damages(이득반환액)의 산정 _ 506
CHAPTER 8.계약의 제3당사자문제
Ⅰ. Third Party Problems 개관 ··········································································· 511
Ⅱ. Third Party Beneficiary(제3수익자) ·································································· 512
1. 제3수익자(third party beneficiary)의 의미와 배경 ········································ 512
2. 제3수익자(third party beneficiary)의 구분 ······················································ 513
2.1 Intended Beneficiary(의도된 수익자) 514
2.1.1 의도된 수익자(intended beneficiary)의 의미와 요건 _ 514
2.1.2 Creditor Beneficiary(채권수익자) _ 515
2.1.3 Donee Beneficiary(수증수익자) _ 515
2.2 Incidental beneficiary(부수적 수익자) 516
2.3 계약당사자들의 수익자에 대한 권리부여의 의도에 관한 문제 517
3. 수익자의 권리 확정(vesting contractual rights)의 문제 ······························· 519
4. 계약당사자(contracting parties)와 제3수익자(beneficiary) 간 법률관계 ···· 521
4.1 수익자(beneficiary)와 약속자(promisor) 간 법률관계 521
4.2 수익자(beneficiary)와 피약속자(promisee) 간 법률관계 522
4.3 약속자(promisor)와 피약속자(promisee) 간 법률관계 523
5. 수익자(beneficiary)에 대한 항변(defenses) ····················································· 524
Ⅲ. Assignment of Contractual Rights(계약상 권리의 양도) ························· 5
1. 계약상 권리 양도(assignment)의 의미 ······························································ 527
2. 계약상 권리 양도(assignment)와 제3수익자(third party beneficiary)의 구별 ············· 528
3. 계약상 권리 양도가능성(assignability)의 제한(limitations) ·························· 529
3.1 계약상 권리의 양도를 명시적으로 금지하는 약정을 체결하는 경우 530
3.1.1 당사자간 계약의 양도(assignment of contract)를 금지하는 규정을 둔 경우 _ 530
3.1.2 계약상 권리 양도(assignment)의 금지규정(prohibition clause) 또는 무효규정(invalidation clause)의 효력 _ 531
3.2 장래 권리(future right) 또는 사후에 취득된 권리(after–acquired right)의 양도문제 532
3.3 채무자(obligor)에게 불리한 영향(adverse effect)을 미치는 경우 534
3.3.1 권리의 양도로 채무자의 의무에 중대한 변경(material change)이 발생하는 경우 _ 535
3.3.2 권리의 양도로 채무자의 부담이나 리스크에 상당한 증가(material increase)를 가져오는 경우 _ 538
3.3.3 권리의 양도로 채무자의 상응하는 이행(return performance)을 받을 기회에 중대한
손상(material impairment)이 발생하는 경우 _ 538
3.4 법규 또는 공서양속(public policy)상 양도가 제한되는 경우 539
4. 계약상 권리 양도(assignment)의 요건 ······························································ 539
5. 계약상 권리의 양도에 따른 법률관계 ······························································· 541
5.1 양도인(assignor)과 양수인(assignee) 간 법률관계 541
5.2 양도인(assignor)과 채무자(obligor) 간 법률관계 542
5.3 양수인(assignee)과 채무자(obligor) 간 법률관계 543
6. 관련 문제 ················································································································· 546
6.1 계약상 권리의 이중양도(successive assignments of the same rights)의 문제 547
6.1.1 계약상 권리의 무상양도(gratuitous assignments)의 경우 _ 547
6.1.2 계약상 권리의 유상양도(assignments for value)의 경우 _ 549
6.2 계약상 권리의 재양도(sub–assignment)의 경우 552
6.3 잠재적 형평법상의 권리(latent equity)와 양수인 보호의 문제 553
6.4 계약상 권리의 양도 후 계약변경(modification)을 한 경우 554
Ⅳ. Delegation of Contractual Duties(계약상 이행의무의 위임) ··················· 555
1. 계약상 이행의무의 위임(delegation)의 의미 ··················································· 555
2. 계약상 이행의무의 위임(delegation)과 경개(novation)의 구별 ·················· 557
2.1 이행의무의 위임(delegation)과 수임자(delegate)의 책임(liability) 558
2.2 수임자(delegate)의 이행의무의 인수(assumption) 558
2.3 경개(novation)에 의한 계약상 이행의무 위임자의 의무면제 560
현재, SCOR 전무/변호사
현재, 미국 뉴욕주변호사
현재, 대한상사중재원 중재인(국내/국제)
인하우스카운슬포럼(IHCF) 회장
IBA(International Bar Association) 한국자문위원
법무법인 공유 구성원변호사
메트라이프코리아 법무총괄/준법감시인/상무
메트라이프인터내셔널 아시아지역본부 준법업무총괄책임자
법무법인 태평양 변호사(Finance Group/IT & Energy Group)
법무법인 김신유 변호사(현, 법무법인 화우: 송무/기업법무 그룹)
서울지방법원 조정위원
제36회 사법시험 합격/제26기 사법연수원 수료
계약협상 및 영문계약실무 다수 강의
법률신문사/잡지 등 문화칼럼 다수 기고
사내변호사/개인정보보호/금융 관련 실무 다수 강의
Georgetown University Law Center 졸업
고려대학교 법과대학원(상법) 졸업
고려대학교 법대 졸업
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