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CISG CASE PRESENTATION

Republic of Korea 29 April 2010 Daegu District Court
[Cite as: http://cisgw3.law.pace.edu/cases/100429k3.html]

Primary source(s) of information for case presentation: Case abstract

Case Table of Contents


Case identification

DATE OF DECISION: 20100429 (29 April 2010)

JURISDICTION: Republic of Korea

TRIBUNAL: Daegu District Court

JUDGE(S): Unavailable

CASE NUMBER/DOCKET NUMBER: 2007Gahap11525

CASE NAME: Unavailable

CASE HISTORY: Unavailable

SELLER'S COUNTRY: Korea

BUYER'S COUNTRY: China

GOODS INVOLVED: [-]


UNCITRAL case abstract

KOREA: Daegu District Court 29 April 2010

Case law on UNCITRAL texts [A/CN.9/SER.C/ABSTRACTS/134],
CLOUT abstract no. 1279

Reproduced with permission of UNCITRAL

Abstract prepared by Haemin Lee, National Correspondent

The Chinese buyer (plaintiff), originally a subsidiary of the Korean seller (defendant), was a distributor of the defendant’s goods in China, later on becoming an independent entity. The two parties entered into an agreement for the supply of goods. The defendant, discontent with the conditions of the agreement including substantially lower prices of the goods compared to the price applied to other buyers, suspended the delivery for a short time. It resumed the delivery after a few weeks with a request to renegotiate the terms when the parties renew the contract. The plaintiff, while refusing to renegotiate the price, asserted that the suspension of the delivery and the unilateral demand for raising the price constituted avoidance of the original agreement. It thus filed for damages.

The court found that as the supply agreement provided for the delivery of goods in installments, and the defendant’s suspension of delivery had been a temporary act, there was no fundamental breach of contract by the defendant. Furthermore, the plaintiff had failed to respond to the defendant’s requests to renegotiate the price of the goods several times, ignored the defendant’s offer to restart the transaction and filed its lawsuit under a presumption that the contract had been avoided. These acts constituted ‘a fundamental breach of contract’ by the plaintiff and provided sufficient grounds for anticipating a ‘fundamental breach with respect of future installments’ as well. The court thus held that the contract was avoided pursuant to the declaration of avoidance subsequently made by the defendant under Article 73(1) and (2), and 25 CISG.

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Classification of issues present

APPLICATION OF CISG: Yes

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 25 ; 73(1) and 73(2)

Classification of issues using UNCITRAL classification code numbers:

25A [Effect of a fundamental breach];

25B [Definition: Substantial deprivation of expectation, etc.];

73A [Fundamental breach with respect to installment];

73B [Refusal of future installments]

Descriptors: Avoidance; Fundamental breach; Installment contract; Suspension of performance

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Editorial remarks

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Citations to other abstracts, case texts and commentaries

CITATIONS TO OTHER ABSTRACTS OF DECISION

Unavailable

CITATIONS TO TEXT OF DECISION

Original language (Korean): Unavailable

Translation: Unavailable

CITATIONS TO COMMENTS ON DECISION

Unavailable

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Pace Law School Institute of International Commercial Law - Last updated November 8, 2013
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