판례평석 : 해제권유보조항과 이행의 착수 및 기한의 이익 사이의 관계 - 대법원 2024. 1. 4. 선고 2022다256624 판결 - = A case study : The relation between rescission reservation agreement, initiation of performance, and benefit of time - based on the Supreme Court Decision 2022Da256624 Decided January 4, 2024 -

다국어 초록 (Multilingual Abstract)

In a contract of sale, a commonly used provision is the rescission reservation agreement, which stipulates, ‘Until the buyer pays the interim/remaining payment to the seller, the seller may rescind the contract by repaying double the amount of the down payment, and the buyer may rescind by waiving the down payment.’ The Supreme Court ruled as follows: If the commitment date specified in the contract can be considered as conferring a benefit to the seller as well, it implies that there are special circumstances where the buyer cannot commence performance before the commitment date.
In the analogous case, unlike the aforementioned judgment, Article 565 of the Civil Act was directly applied, and the buyer fully paid the remaining balance. Consequently, the Supreme Court prohibited the seller from rescinding the contract. However, in the previously discussed judgment, the rescission reservation agreement explicitly specifies ‘pays of the interim/remaining payment’. This implies that partial payment cannot be deemed equivalent to the payment stated above, in contrast to Article 565 of the Civil Act. This ‘payment’ should be interpreted as ‘complete payment’.
From another perspective, it appears that the prevailing opinion suggests the mere presence of a rescission reservation agreement should automatically grant the benefit of time to the seller. However, following this viewpoint leads to the conclusion that even if the buyer pays the entire interim/remaining amount early, the seller can still rescind the contract by returning the down payment and the money received in advance. This intuitively contradicts the principle of ‘pacta sunt servanda’. While it is reasonable to assert that the benefit of time arises when the commitment date is set, the aforementioned judgment is analyzed as follows: the benefit of time may not exist initially but can emerge based on post-contractual circumstances. This part of the argument lacks rigorous precision.