서식의 충돌시 계약 내용의 확정

• 영문명: Terms of Contract in Battle of the Forms
• 발행기관: 한국민사법학회
• 저자명: 김성민(sungmin kim)
• 간행물 정보: 『민사법학』제73호, 161~221쪽, 전체 61쪽
• 주제분류: 사회과학 > 사회과학일반
• 파일형태: PDF
• 발행일자: 2015.12.31

영문 초록

Traditionally, a contract has been considered to be formed by an offer and an acceptance. However, there are many cases where it is difficult to distinguish an offer and acceptance in an actual transaction, and in particular, where parties exchange various written forms. Parties may perform the contract even when the exchanged forms include discordant terms and conditions. This study focuses on the case where the forms provided by each party include differing terms, known as the ‘battle of the forms’, and suggests ways to establish terms of the contract in domestic contracts as well as international contracts. There has been some debate as to which principle best resolves the battle of the forms and many commentators have either suggested the “last shot theory” and the “knock-out rule” as the solutions. In domestic contracts, Article 534 of the Civil Code is relevant in interpreting contract. Whether Article 534 would apply or not would depend on particular circumstances. In international contracts, there could be battle of the forms relating to the jurisdiction and choice of law. Also, application of CISG must be considered in sale of goods. The CISG does not contain particular rule on the battle of the forms and thus brings various interpretation on Article 19 of CISG.

목차

Ⅰ. 서론

Ⅱ. 서식의 충돌의 범위

Ⅲ. 해결방법 개관

Ⅳ. 국내계약의 경우

Ⅴ. 국제계약의 경우

Ⅵ. 결론

키워드

서식의 충돌 약관의 충돌 변경된 승낙 최후서식규칙 충돌배제규칙 유럽국제물품매매협약의 적용범위 방어조항 battle of the forms conflict of general conditions last shot theory knock-out rule acceptance with variation defensive clause