• 무역상무연구
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• 제69권
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• pp.23-43
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• 2016

This study describes the exclusion of the seller's liability for defects in title under CISG and UCC. Through comparing two provisions, this article provides contracting parties with guidance regarding choosing governing laws and practical advice. CISG and UCC states not only the seller's liability for defects in title but also the exclusion respectively. Under two provisions, contracting parties who wish to avoid this liability may agree that the liability will not apply. Under UCC ${\S}$2-213(2), the seller's warranty can be disclaimed by specific language in the contract or by the circumstances surrounding the transaction. Although there is no express exclusion provision under CISG Article 41 and 42, Article 6 allows contracting parties to agree that they may exclude the application of the seller's liability. Both Article 42 under CISG and ${\S}$2-213(3) under UCC provide where the buyer furnishes specification to the seller. Under UCC ${\S}$2-213(3), it is the buyer's warranty to hold the seller harmless from any claims which arise from the seller complying with specification furnished by the buyer. But, under CISG Article 42, the seller's duty is excluded if the third party right or claim result from the fact that the seller has complied with specifications provided by the buyer. Therefore Article 42 does not charge the buyer with the duty, but rather limits the circumstances under which he could cause claims under Article 42. Interestingly, CISG has provisions which are absent from UCC. First, under Article 41, the seller escapes the liability if the buyer agree to take the goods subject to the third party right or claim. Second, under Article 42(2)(a), the seller is not liable if the buyer knew or could not have been unaware of the third party right or claim at the time of the conclusion of the contract.

• 무역상무연구
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• 제32권
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• pp.29-56
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• 2006

This article primarily concerns the various aspects of the rules to control express terms particularly in standard form which seek to absolve either wholly or in part from the seller's liability for non-conforming goods. It describes and analyzes in detail how English law regulates such terms. In this analysis, it places the following questions; first, whether each jurisdiction treats the seller's liability for non-conformity in quality and quantity as mandatory rules, second, if it does, to what extent it is treated so and third, if not, in what way it controls the seller's attempt to exclude or restrict his liability for non-conformity in quality and quantity. In addition, it attempts to compare the rules under English law with those under Korean law and to evaluate them in light of the discipline of comparative law. In an attempt to evaluate them, it asks the question of whether a solution from one jurisdiction may facilitate the systematic development and reform of another jurisdiction. The evaluation is based upon the idea that the problems of fairness associated with the use of standard terms occur where the customer is unfairly taken by surprise due to his ignorance of the terms, or where even if he knows of the substance of the terms and objects to it, he is met with a take-it-or-leave-it situation.