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Tender

1. Requirements

  • Exact compliance is required with regard to time, place and mode of performance
  • Actual tender is required; verbal communication of readiness and willingness is not enough
  • Tender of partial performance is not enough:

84Daka781: The plaintiff owes to the Defendant an outstanding balance of KRW1,213,809. On 1 July 1983, The Plaintiff tendered the payment but the Defendant refused to accept the payment. The Plaintiff paid into Court KRW510,000

2. Non-acceptance of the tender (mora creditoris)

  • Art. 400, Art 403
  • Interest stops to accrue
  • Relaxed duty of care (bad faith or gross negligence only) 2010Da11323
  • Costs incurred by the tenderer needs to be compensated by the creditor
  • Inapplicable to a sale contract.
    • Art 587: Purchaser not required to pay interest until delivery of the thing sold (including deposit into court). 95Da14190
    • Art 374: Seller must bear the costs of maintaining and preserving the thing sold until it is delivered (even while the buyer is in mora creditoris and in delay, or in repudiatory breach of its obligation to pay the purchase price). 80Da211

3. Tender in a sale contract (simultaneous performance)

  • One party's tender will put the other party in breach (if the other party does not perform its obligation)
  • However, the breach will not continue unless the tender continues. 94Da26646, 2010Da11323
  • In a sale contract, the purchaser need not pay delay interest, need not bear the seller's costs of safekeep or the increased costs of performance until the delivery of the thing sold (See Art. 587. N.B. Art 403 inapplicable). 96Da14190, 80Da211. This is because the seller has an obligation to maintain and to preserve the thing sold until it is delivered (Art. 374)
  • The seller benefits from possession of the thing sold until delivery (hence, buyer not required to pay delay damage even where payment of the purchase price is in delay).
  • The seller could, if it so chooses, deposit the thing sold into court (= equivalent to the delivery to the purchaser). From then on, the seller shall be entitled to delay damage in respect of unpaid purchase price.

 4. Non-acceptance amounting to repudiation?

  • May the debtor terminate the contract?
  • Indefinitely bound by the contract?
  • Payment into Court
  • Refusal to accept v. Refusal to perform
  • (cf.) English law: Sale of Goods Act 1979, section 37 (Buyer's neglect to take delivery may hold him liable to compensate for the seller's loss. Seller is discharged.)
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