• Asia-Pacific Journal of Business
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• v.11 no.3
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• pp.273-290
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• 2020

Purpose - The purpose of this paper is to examine the buyer's right to avoid the contract under SGA and CISG. Design/methodology/approach - This paper has conducted literature reviews to analyze the right to avoid the contract of the buyer based on the comparative study. Findings - Under s. 11(3) of SGA, the breach of a condition and an intermediate which deprives the buyer substantially of the whole benefit of the contract may give rise to a right to treat the contract as repudiated. But under Art. 49 of CISG, the buyer has the right to terminate the contract where the seller's failure to performance amounts to a fundamental breach of contract. Regarding the breach of an intermediate and the breach under CISG, the buyer should take into account where the seller's breach is fundamental or not. Moreover, an anticipatory breach can give rise to a right to avoid the contract. The anticipatory breach of a condition justifies termination. The breach of an intermediate and the breach under CISG require an anticipatory fundamental breach of the contract. Under SGA, the buyer has to prove an anticipatory breach in fact but CISG does not require virtual certainty, which SGA has stricter criteria to assess an anticipatory breach. Research implications or Originality - Comparative study helps to understand the nature of provisions under SGA and CISG and suggests practical advice to choose applicable laws. SGA gives more certainty to classify a contractual term. In case of the breach of a condition including the anticipatory breach under SGA, the buyer does not have to ask how much serious the breach is. But CISG requires the fundamental breach of the contract, which means that the buyer has the more burden of proof compared with SGA.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.66
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• pp.47-73
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• 2015

This study primarily concerns the fundamental breach of contract by a seller and a buyer's two remedies that are entitled to under the CISG. Regarding the breach of contract, the CISG simply provides a list of each party's obligations and regulates that both parties should fulfill the obligations under the contract as well as the Convention. When the CISG specifies the remedies for both parties, it requires to divide the fundamental breach of contract from breach of contract. By doing so, it provides different remedies to both parties depending on whether it is the fundamental breach of contract or not. From the point of buyer's view, the buyer has two remedies when there is the fundamental breach of contract by the seller; they are the right to declare the avoidance of contract and to require the delivery of substitute goods. The fundamental breach of contract is a pre-requisite condition to be fulfilled in order to exercise these two remedies. Although the CISG provides the definition of fundamental breach of contract, its meaning is not clear enough, so it is interpreted and applied case by case. Therefore, this paper will analyze recent cases focusing on the most debated issues regarding the interpretation of fundamental breach of contract; first, who determines the substantial deprivation and when is the time for determination, second, when is the time for unpredictability of substantial deprivation, and last, who has a burden of proof.

• Asia-Pacific Journal of Business
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• v.11 no.4
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• pp.149-165
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• 2020

Purpose - This study investigates how employee personality traits affect psychological contract breach. Also, our study examines how Guanxi, a unique socio-cultural characteristic of China, moderates the relationship between personality traits and psychological contract breach. Design/methodology/approach - To test our ideas, we constructed a survey questionnaire based on the literatures on personality traits, Guanxi, and psychological breach. The questionnaires were distributed to Chinese employees, and then we conducted a regression analysis using 378 questionnaires. Findings - We found that neuroticism is positively related to perceived psychological contract breach. We also identified support for the prediction that the positive link between neuroticism and psychological contract breach becomes weaker when employees' awareness of Guanxi is high. Research implications or Originality - This study provides several theoretical and practical implications. First, this study elaborates the personality traits-psychological contract breach relationship by incorporating Guanxi, a critical contingency factor of China. Second, given that the relationship between neuroticism and psychological contract breach can be affected by employees' perceptions of Guanxi, managers should administer Guanxi to function as a lubricant within the organization.

• Journal of the Korean Society of Safety
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• v.30 no.3
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• pp.85-92
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• 2015

This study examined the effects of employers' breach of safety obligation and violation of psychological contract on the workers' safety behaviors and turnover intention. Especially, this study examined a mediating effect of violation of psychological contract on the relationship between employer's breach of safety obligation and workers' safety behavior and turnover. 198 workers were asked to respond to the questionnaires that measured various demographic variables, employers' breach of safety obligation, violation of psychological contract, safety behavior, turnover intention. A hierarchical regression was conducted to identify variables that had significant relationships between employers' breach of safety obligation and employees' safety behavior and turnover intention, and to examine the mediating effect of violation of psychological contract. Results indicated that the employers' breach of safety obligation significantly predicted both workers' safety behaviors and turnover intention. It was also found that the violation of psychological contract was a significant predictor for both workers' safety behavior and turnover intention. In addition, violation of psychological contract was found as mediating effect on the relationship between employers' breach of safety obligation and workers' safety behavior and turnover intention. Based on these results, the implications of this study and suggestions for future research were discussed.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.66
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• pp.119-148
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• 2015

Generally, the liability for breach is defined as the civil liability that arises from the conduct of violation of a contract. There are two notable principles governing liability for breach that have fundamental impacts on the unified Contract Law of the People's Republic of China (hereinafter Chinese Contract Law) in the remedies. In China, during the drafting of the Contract Law, there was a great debate as to whether damages for breach of contract ought to follow the fault principle or to follow the strict liability principle. Ultimately the Chinese Contract Law follows the model of the CISG on this point, namely, it follows the strict liability principle (article 107) with an exemption cause of force majeure. Under Chinese Contract Law, it is interpreted as strict liability in principle. Strict Liability is a notion introduced into Chinese Contract Law from the Anglo-Saxon Law. The strict liability or no fault doctrine, on the contrary, allows a party to claim damages if the other party fails to fulfill his contractual obligations regardless of the fault of the failing party. Pursuant to the strict liability doctrine, if the performance of a contract is due, any non-performance will constitute a breach and the fault on the party in breach is irrelevant. This paper reviews problems of legal character or legal ground of contractual liability in Chinese contract law. Specifically, focusing on the interpretation of Chinese contract law sections and analysis of three cases related contractual liability in freight agency, the paper proposes some implications of structural features of Chinese contract law and international commercial transactions.

• Journal of Information Technology Services
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• v.15 no.1
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• pp.81-96
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• 2016

This study analyzes how breach fee under long-term contract and/or cap regulation on the breach fee can affect the impacts of "Mobile Device Distribution Improvement Act" on handset bundle price, average revenue per unit (ARPU), and social welfare. We conduct comparative analysis with an economic model of duopoly competition in price when users are under long-term contract and the breach fee can be regulated. The results show that the Act lowers the equilibrium prices, lower than incumbent price without the Act. Price of non-dominant Mobile Network Operator (MNO) can be lower than poaching price without the Act if significant portion of switching cost is breach fee or the market is significantly asymmetric. Under the significant circumstances, the Act can raise ARPU even though it improves social welfare. By contrast, the Act increases consumer surplus without affecting social welfare if breach fee is the only source of user's switching cost and is capped by the regulation, and more symmetric market and the stronger cap leads to higher consumer surplus.

• Korean Journal of Culture and Social Issue
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• v.25 no.1
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• pp.27-53
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• 2019

The purpose of this study is to investigate the influence of techno-overload and techno-invasion on emotional exhaustion and the mediating role of psychological contract breach. In addition, this study examines the moderating role of voice behavior in the relationship between techno-overload, techno-invasion and psychological contract breach. The results from 296 participants provided evidence that (1) techno-overload and techno-invasion are positively related to psychological contract breach, (2) psychological contract breach is positively related to emotional exhaustion, (3) psychological contract breach partially mediates the relationship between techno-overload, techno-invasion and emotional exhaustion, (4) voice behavior moderates the relationship between techno-overload, techno-invasion and psychological contract breach. Based on the results, implications of these findings, limitations, and future research are discussed in general discussion.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.19
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• pp.67-93
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• 2003

The CISG approach was intended to make the remedial system clear, but produced ambiguity, and complexity. The CISG does not differentiate between main, auxiliary and participatory obligations. There is no distinction between breaches of main or breaches of auxiliary obligations, rather, a distinction is made between fundamental and other breaches of contract. Articles 25 gives the definition of fundamental breach of contract. This concept is the essential of avoidance and remedial system in the CISG. This concept, however, is ambiguous. The fact that the fundamentality of a breach of contract in many cases is the condition for an avoidance of contract, is expression of the trend of the CISG to preserve contracts, which I consider as essential in international trade. The elements which define a substantial detriment are extremely complex. It will become obvious that the relevant detriment is not a static element, but in many instances occurs only when the breach of contract continues. It should be added that it is the circumstances of each individual case which are relevant. It is to be stressed that a fundamental breach of contract must constitute also a non-fulfillment of a contractual obligation.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.55
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• pp.95-124
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• 2012

Referring to Buyer's obligations, the Buyer must pay the price for the goods and take delivery of them as required by the contract. There are vital importances to the Buyer's Fundamental Breach. The legal effects of a breach of contract do not depend on the nature of the obligation broken, but on the consequences of the breach the detriment to the other party. The obligations mentioned to Article 53 are primary obligations which are to be fulfilled in the normal performance of the contract. They include a number of different acts which could be seen as the subject-matter of different obligations. CISG gives further details for the payment of the price in Articles 54 to 59 and for taking delivery in Article 60. The buyer has to take delivery at the respective place within a reasonable period after this communication since he cannot be required to take delivery immediately. Refusing to take delivery in case of delay not constituting a ground for avoiding the contract makes no sense, since this would lead to even later delivery. For the understanding of Buyer's Fundamental Breach, We need to search the Cases referring to the breach of buyer's main obligations.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.66
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• pp.95-118
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• 2015

This study examines the Buyer's Remedies in respect of Defects in Title under SGA. As SGA divides contractual terms into a condition and a warranty, its effects regarding a breach of a condition or a warranty are different. Where a stipulation in a contract of sale is a condition, its breach may give rise to a right to treat the contract as repudiated and to claim damages. Where there is a breach of a warranty in a contract of sale, the aggrieved party may have a right to claim damages. Regarding a breach of a condition under SGA s 12(1), although the buyer may have his right to terminate the contract, he may lose that right when he accept or is deemed to have accept the goods by intimating his acceptance to the seller, acting inconsistently with the ownership of the seller, or retaining the goods beyond a reasonable time without rejecting them. Furthermore, the buyer may claim the estimated loss directly and naturally resulting from seller's breach. SGA contains the principle of full compensation and so the suffered loss and the loss of profit are compensable. As to specific performance under SGA, the court has been empowered to make an order of specific performance to deliver the goods in conformity with the terms of the contract and so it is not a buyer's right. This order should be made only where the goods to be delivered are specific or ascertained goods and the court must think fit to grant the order. However, among these remedies, the buyer cannot have the right to terminate the contract where there is a breach of warranty by the seller under SGA s 12(2).