《聯合國國際商品買賣公約》契約解消重大違約之研究

Abstract

自1980年《聯合國國際商品買賣公約》批准及生效時起，開啟了全球與區域契約法整合以及各國契約法現代化之風潮。單一違約概念之採用與契約解消歸責事由不必要說被認為是契約法是否現代化之關鍵。相較於我國法傳統上區別債務不履行責任及瑕疵擔保責任，使契約解消因違約原因不同而有不同要件，採用單一違約概念可避免落入複雜的違約分類之爭，平等對待所有契約未被圓滿履行之情形。於本公約中，違約涵蓋所有當事人未履行其任何義務之情形，至於義務之來源（依契約、習慣或本公約規定）與分類（主要、次要或附隨義務）並不重要。 在單一違約概念之基礎之上，本公約統一以違約後果之嚴重性衡量是否賦予契約解消之救濟，唯有構成第25條重大違約時，受害之一方才能解消契約。當事人一方違反契約，使他方當事人發生實質剝奪其依契約所得期待者之不利益時，為重大違約，他方得立即解消契約，不必證明客觀損害，也與違約之一方主觀為故意或過失無關。 經由分析外國法院之判例法，本文歸納出重大違約之判斷，須考量契約義務之重要性、違約後果之嚴重性、信賴關係、履行之意願或能力、欠缺符合之可修補性及受害之一方是否得合理使用或轉售貨物等因素。

Since the United Nations Convention on Contracts for the International Sale of Goods (1980) was approved and came into force, the global and regional harmonization of contract law and the modernization of national contract law have become a trend. The adoption of the unitary concept of breach of contract and the abandon of the responsibility of the obligor are considered as critical requirements of the modernization of contract law. Compared with the fact that Taiwan follows the tradition of differentiating the liability of non-performance and that of defect warranty in its Civil Code, which makes the requirements of the termination of contract vary from different causes of breach, the adoption of unitary concept of breach of contract avoids the complexity of breach categorization and promotes the equal treatment of all types of non-performance of contract. Under the Convention, the notion of breach of the contract covers all failures of a party to perform any obligation, irrespective neither of its origins in the contract, in usage, or in the Convention itself, nor of its distinction of primary, secondary or ancillary obligation. On the basis of the unitary concept of breach of contract, the parties’ right to avoid a contract solely depends on the seriousness of the consequences of the breach under the Convention, and only when it constitutes a fundamental breach of the contract under Article 25 can the aggrieved party avoid the contract. A breach of contract committed by one of the parties is fundamental if it results in such detriment to the other party as substantially to deprive him of what he is entitled to expect under the contract; the other party may avoid the contract immediately without proving that he has suffered from objective damage. Also, the intention or negligence of the party who commits such a breach is irrelevant in determining the avoidance of the contract and fundamental breach. By analyzing case law of foreign courts, this study concludes that when determining fundamental breach, regards have to be given to the importance of the contractual obligation, the seriousness of the consequences of breach, the reliance, the willingness or ability to perform, the repairability of the non-conformity and whether the aggrieved party can reasonably be expected to use or resell the goods.