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Delay

1. Time of performance

  • Where 'uncertain' time is specified
    • performance is due when the promisor knows that the time has come. Art. 387(1)
  • Where the time is not specified at all
    • Performance is due upon demand (on the day the demand is made)
    • a "reasonable time" is allowed when a demand is made for repayment of a loan of money or fungibles. Art. 603(2)
  • Where the time of performance is specified
    • of essence?
    • immaterial?

2. In mora

  • The party in mora shall be held liable for all losses regardless of fault (Art. 392)
  • If, however, the loss would have occurred even if timely performance had been made, the party in mora will only need to compensate for the delay.

3. Termination on the ground of delay

  • Not allowed in principle, unless the time is of essence
  • May terminate where periodical performance is missed
  • Upon notice: Having allowed a reasonable time to perform and yet no performance is made (Art. 544)
  • 94Da35930: Even where a reasonable extension was not explicitly granted, the termination is valid when it was done after the lapse of a reasonable period of time after the performance was demanded. A termination notice (invalid because no extension had been given) can still be regarded as a demand for performance. Termination becomes valid after the lapse of a reasonable period from such a notice.
  • 79Da1859: In a sale of real estate, the payment of balance was due on 20 April. Buyer did not pay. On 24 April, seller tendered all necessary documents needed for completion and demanded buyer's payment by 26 April.  Seller terminated the contract on 27 April. Termination valid.

4. Delay interest in a sale contract

  • Purchaser not required to pay interest until the thing sold is actually delivered (Art 587 of KCC; 96Da14190): “even where the purchaser fails to make timely payment of the purchase price, the purchaser need not pay interest on the purchase price until the thing sold is delivered."
  • However, if partial payment is delayed, interest is payable only on the partial payment until the closing date. 대법원 1991. 3. 27 선고 90다19930 판결

5. Mora creditoris in a sale contract

  • The party in mora creditoris is normally responsible for the obligor's added costs of safekeep of the object and the added costs of performance. Art 403
  • However, in a sale contract, the purchaser is not responsible for the seller's costs of maintenance and preservation of the thing sold until it is delivered (even if the purchaser is in mora creditoris). 80Da211 (Even when the Purchaser is in breach of its own obligation, Seller still has the duty to maintain and preserve the thing sold until delivery anyway. Art 374.)
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