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Study on the seller's right to cure in CISG - Concentration on the comparison with the right in UCC -

  • Journal of International Business Transactions Law
  • Abbr : IBT
  • 2018, (22), pp.1-27
  • DOI : 10.31839/ibt.2018.08.22.1
  • Publisher : The Institute for Legal Studies Dong-A University
  • Research Area : Social Science > Law > Private Law > International Commercial Transactions Law
  • Received : June 18, 2018
  • Accepted : July 27, 2018

Choi Hye - sun 1

1전남대학교

Accredited

ABSTRACT

The seller's right to cure is not familiar in our contract law that follows German and French law systems. CISG adopted it by influence of UCC and this right is based on the policy preference for maintaining the contractual relationship. As a result, to understand the seller's right to cure rightly, the research on the right in UCC is necessary. UCC §2-508 (1) provides the seller's right to cure which a seller performs it within the contract time. This right is recognised as a relatively unlimited right. UCC §2-508 (2) provides the seller's right to cure which a seller performs it after the contract time. To perform this right, a seller has to meet three cumulative requirements. UCC official commentary offers some direction to help to judge whether a seller met those conditions. The seller who wants to perform the right, had reasonable grounds to believe his non-conforming tender would be acceptable. Concerning to decide whether that condition is met, in prior course of dealing, course of performance, usage of trade and the particular circumstances surrounding the making of the contract could be the factors to be considered. UCC §2-508 doesn't stipulate the effect by the seriousness of a defect to the right. As a result, the courts have different views regarding that, but these different decisions maybe be derived from the goal to pursue the fairness between both parties. CISG provides the better remedy for non-conforming or detective goods, because every seller not only the seller who had reasonable grounds may perform this right. In addition, except the time delay, a seller has this right although serious defects. This development of the CISG maybe is from that the lawmakers thought the principle which this right is based on is more developed and they thought this is right direction. Although our contract law follows the German and French law system, but we could consider accepting this right and this principle.

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