• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.42
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• pp.33-66
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• 2009

Common law makes a distinction between partial breach and material breach. Attempted definitions of material breach are notoriously unsatisfactory, and the concept of partial breach does not necessarily bear an inverse relationship to substantial performance. This study will review the basic structure of common law contract remedies together with how these remedies are reflected in UCC Article 2 for sale of goods contracts. The matter is complicated because availability of remedy depends on the seriousness of the breach, and the right to cure, and (for sale of goods) these in turn depend on whether the contract is an installment contract or a single performance contract. Common law jurisdictions relegate specific performance of contracts to a last place in the hierarchy of contract remedies. Common law lawyers should recognize that this is the result of historical accident and not the product of some kind of superior intellectual effort. Not only is the attitude of civil law systems toward specific performance quite different, but for international sales contracts in developing nations, a remedy system based on the notion that substitute contracts are readily available(and therefore damage remedies are appropriate) is unrealistic. English common law courts were largely restricted to remedies in the form of monetary damages. For that reason the primary contract remedy at common law has never been specific performance. Rather, common law courts have struggled to develop an appropriate measure of monetary damages for breach of contract. Today, specific performance is viewed as an equitable remedy rather than common law. In the United States the dual court system has been abolished by a merger of law and equity courts into a single court structure. However some historical distinction linger on. The most important is that jury trials are generally not available in actions that seek equitable relief. If a plaintiff seeks in personam relief, such as specific performance of a contract, the action will be viewed as equitable and there will be no entitlement to a jury. Further, equitable relief will be granted only in those situations where the plaintiff pleads and proves that the remedy at law is inadequate. The purpose of this study aims to analyze the remedy system of breach of contract of U.K. and U.S. in the international commercial transactions with criterion of commercial rationality.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.5
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• pp.7-44
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• 1993

This study is focused on the review of buyer's remedy resulting from the breach of seller's duty in contracts for the international sale of goods focusing on UNCCIS, 1980 and the problems and suggestions of proper ideas for solving the problems. First problem on the buyer's remedy is related to the breach of seller's duty on del ivory of the contracted goods. When seller has failed to deliver the contracted goods to buyer within the stipulated periods, buyer can treat the contract as avoided and claim damages from seller. By the way, since UNCCIS does not provide any stipulation on the time of buyer's avoidance of the contract, buyer can delay the time of avoidance when the price of contracted goods is rising rapidly and enlarge the amount of damages, Since this stipulation is clearly unreasonable, proper solutions are required for UNCCIS. Second problem is related to the breach of seller's duty on deliver of goods which are of the quantity, quality and description required by the contract and which are contained or packged in the manner required by the contract. When seller has failed to deliver goods which are confirm with the contract, buyer may have one of the two rights of damages and the price reduction according to UNCCIS provided that he does not choose the avoidance. But, since the character and position of the price reduction as a buyer's remedy are not sufficient solutions, more detailed review on this point is required. Third, Seller's duty to provide documents is very important for overseas trade, but UNCCIS does not provide any specific buyer's remedy in comparison with the other remedy and also does not provide any stipulation on the Letter of Credit which have important roles for a device of setting payment in overseas trade. This means that trade customs and practice have not sufficiently reflected in UNCCIS. As the problems mentioned above may decrease the evaluation of buyer's remedy in UNCCIS and, furthermore, that of UNCCIS itself, proper solutions on these points are needed.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.24
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• pp.25-49
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• 2004

English contract law has traditionally taken the view that it is not the duty of the parties to a contract to give information voluntarily to each other. In English law, one of the principal distinctions between insurance contract law and general contract law is the existence of the duty of disclosure in insurance law. This article is, therefore, designed to analyse the scope or extent of the duty of disclosure and the remedy for breach of the duty in English marine insurance law. The main purpose of this article is also to seek the alternative remedy for the breach. The results of analysis are as following : First, the scope of the duty of disclosure is closely related to the test of materiality and the concept of a hypothetical prudent insurer. The assured is required to disclose only material circumstances subject to MIA 1906, s. 18(1). The test of materiality, which had caused a great deal of debate in English courts over 30 years, was finally settled by the House of Lords in Pan Atlantic and the House of Lords rejected the 'decisive influence' test and the 'increased risk' test, and the decision of the House of Lords is thought to accept the 'mere influence' test in subsequent case by the Court of Appeal. Secondly, an actual insurer is, in order to avoid contract, required to provide proof that he is induced to enter into the contract by reason of the non-disclosure of the assured. But this subjective test of actual inducement is somewhat meaningless in sense that English court takes the test of materiality as a starting point and assumes the presumption of inducement even in case of no clear proof on the inducement. Finally, MIA 1906, s. 18 provides expressly for the remedy of avoidance of the contract for breach of the duty of disclosure. This means rescission or retrospective avoidance of the entire contract, and the remedy is based upon a fairly crude 'all-or-nothing' approach. The remedy of rescission is too draconian from the point of view of the assured, because he can be deprived of all cover despite he is innocent perfectly. An inadvertent breach from an innocent mistake is as fatal as wilful concealment. What is, therefore, needed in English marine insurance law with respect to remedy for the breach is to introduce a more sophisticated or proportionate remedy ascertaining degrees of fault.

• Korea Trade Review
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• v.45 no.3
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• pp.133-146
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• 2020

In the UK's the insurance law 2015, a remedy for breach of warranty in marine insurance was introduced. Also, if the insured proves that breach of warranty in marine insurance does not affect damages, the insurer pays the insurance money to the insured. The UK's marine insurance law has served as the governing law that has been the standard for the marine insurance industry for a long time. Korea and China were heavily influenced by the UK maritime insurance law. Therefore, this study analyzed the cases of breach of warranty in marine insurance in Korea and China. Through this, the insurer avoid the insurance contract for an accident that occurred after the breach of warranty. this result will be different under the new revised insurance law system. With the revision to The Insurance Act 2015, one of the biggest change in the insurance system is that it is possible to remedy of the violations of warranty. However, such a revision of the law requires considerable attention as it also changes the interpretation and judgment of the courts. Accordingly, a practical response of the insurance industry is required. It is necessary to prepare for possible disputes in practice.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.73
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• pp.65-90
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• 2017

The rule of warranty in English insurance law was established in the second part of the $18^{th}$ century by Lord Mansfield, who laid the foundations of the modern English law of insurance contract and developed very different rule of insurance law, especially in the field of warranty. At the time of Lord Mansfield, warranty, that is, the promise given by the assured, played an important role for the insurer to assess the scope of the risk. Legal environments, however, have changed since the age of Lord Mansfield. English and Scottish Commissions proposed very dramatic reform of law in the field of warranty law to reflect the changes of legal environment through the Insurance Act 2016. This article intends to consider the legal implications through the comparative analysis between the new regime of warranty in the Insurance Act 2015 and MIA 1906. The major changes in the Insurance Act 2015 are summarized as following. First, Basis of the contract clauses in non-consumer insurance contracts should be of no effect and representations should not be capable of being converted into warranties by means of a policy term or statement on the proposal form. This requirement should not be capable of being avoided by the use of a contract term and the arrangement of contracting out by parties should be of no effect. Secondly, The existing remedy for breach of warranty, that is, automatic discharge of the insurer's liability, should be removed. Instead, the insurer's libility should be suspended from the point of breach of warranty and reattach if and when a breach of warranty has been remedies. Thirdly, A breach of warranty should genally be regarded as remedied where the insured ceases to be in breach of it. In the other hand, for time-specific warranties which apply at or by an ascertainable time, a breach should be regarded as remedies, if the risk to which the warranty relates later, becomes essentially the same as that originally contemplated by the parties. Fourthly, where a term of an insurance contract relates to a particular kind of loss, or loss at a particular location/time, the breach of that term should only give the remedy in relation to loss of that particular kind of loss, or at a particular location/time. Finally, whether a term of an insurance contrat relates to loss of a particular kind of at a particular location/time should be determined objectively, based on whether compliance with that ther would tend to reduce the risk of the occurrence of that category of loss.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.12
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• pp.253-276
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• 1999

CISG articles 34 and 37 clearly allow the seller to cure any nonconformity in documents of sale or performance prior to the date for delivery if it does not cause the buyer unreasonable inconvenience or unreasonable expense. CISG article 48 allows a seller to cure the performance even after the date for delivery if it does not cause the buyer unreasonable delay, unreasonable inconvenience or unreasonable uncertainty of reimbursement by the seller of expenses advanced by the buyer. The wording any failure to perform is broad enough to include a delay. The seller's right to cure relates to all his obligations. The seller may remedy 'any failure to perform his obligations'. This language is broad enough to include a defect in documents. In some cases the fact that the seller is able and willing to remedy the non-conformity of the goods without inconvenience to the buyer, may mean that there would be no fundamental breach unless the seller failed to remedy the non-conformity within an appropriate time. It cannot generally be said what unreasonable inconvenience means. This can only be decided on a case-by-case basis. The seller must bear the costs involved in remedying a failure to perform. The curing of a failure to perform may have influence on the amount of the damage claimed. Insofar as the seller has the right to cure, the buyer is in that case obliged to accept the cure. If he refuses to do so, he can neither avoid the contract nor declare a reduction in price. This rule clearly shows the underlying concept of the CISG, to keep to the contract, if possible. Should the buyer requires delivery of substitute goods and the seller offers repair, it depends on the expense each case. The buyer must receive the request or notice by the seller. The relationship between the seller's right to cure and the buyer's right to avoid the contract is unclear. The buyer's right to avoid the contract should not nullify the seller's right to cure if the offer is reasonable. In addition, whether a breach is fundamental should be decided in the right of the seller's offer to cure.

• 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.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.62
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• pp.55-86
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• 2014

Korea has become a member of the United Nations Convention on Contract of the International Sales of Goods (the 'CISG') effective since March 1, 2005. As, therefore, the governing law of the general terms and conditions (the 'GTC') in the Government Foreign Procurement Contract (the 'Contract') is mandatorily fixed to the Korean Law, the CISG, as an International Convention, now having an equivalent or even higher status to the Korean Law, unless expressly excluded, will be priorly applied to the Contract where a transaction occurs between its members. In this regard, this study focuses on how to find the way for the CISG to be a governing law of the GTC in order to eliminate legal uncertainties and lacks of foreseeability prevailed in the international trade. For that purpose, the legal aspects of GTC, and the Buyer's remedy for the Seller's breach of the Contract are analyzed in accordance with the comparative study between the CISG and the GTC including the relevant case studies. As a result of this study, the application of the CISG into the GTC is highly recommended in order to reflect into the Contract such features as fairly harmonized for the interest of both parties. Taking this opportunity, a GTC, amended from the existing one, or newly formed, within the perimeter of not conflicting with the provisions of the CISG, including but not limited to the Civil Law and Commercial Law, is required in order to evenly share each party's responsibilities and obligations where the breach or remedy of the Contract is, and, thus, which will ultimately contribute to an efficient conduct of the Contract.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.71
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• pp.1-36
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• 2016

Unlike continental European legal systems (civil law systems), specific performance in common law refers to an equitable remedy requiring exactly the performance that was specified in a contract. It usually granted only when money damages would be an inadequate remedy and the subject matter of the contract is unique. Thus, under common law specific performance was not a remedy, with the rights of a litigant being limited to the collection of damages. Consistent with the practice in civil law jurisdictions, United Nations Convention on Contracts for the International Sale of Goods (CISG) makes specific performance the normal remedy for breach of a contract for the sale of goods. Therefore, the buyer may require a breaching seller to deliver substitute goods or to make any reasonable repair. Likewise, the sellermay require the buyer to taker delivery of goods and pay for them. Despite this, Article 28 of the CISG restricts the availability of specific performance where it would be unavailable under the domestic law of the jurisdiction in which the court is located. Thus, the CISG's more liberal policy toward specific performance is restricted by common law. There are some legal issues in CISG's specific performance availability by Article 28. This paper analyzes these issues as interpreting Article 28 of CISG, by examining various theories of application to actions for specific performance and comparing CLOUT cases involving CISG Article 28.

• Journal of Arbitration Studies
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• v.5 no.1
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• pp.365-387
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• 1995