{"id":539,"date":"2009-06-07T17:55:18","date_gmt":"2009-06-07T08:55:18","guid":{"rendered":"http:\/\/lawlec.korea.ac.kr\/?p=539"},"modified":"2026-03-10T09:55:19","modified_gmt":"2026-03-10T09:55:19","slug":"damages","status":"publish","type":"post","link":"https:\/\/lawlec.korea.ac.kr\/?p=539","title":{"rendered":"Damages"},"content":{"rendered":"\n<p><strong>1. 'Difference' theory<\/strong><\/p>\n\n\n\n<p>Damages should correspond to the difference between the economic position in which the aggrieved party finds himself as a result of a breach (infringement) and the economic position in which the party would have been absent the breach (infringement).<\/p>\n\n\n\n<p><strong>2. 'Performance' measure v. Reliance measure<\/strong><\/p>\n\n\n\n<ul class=\"wp-block-list\">\n<li>The amount of damage aims to put the aggrieved party, as far as practicable, in a position where he would have been in if the contract had been duly performed (\u2018performance\u2019 measure).<\/li>\n\n\n\n<li>91Da33070 (conveyance effected by forged documents); cf. tort measure of damage<\/li>\n\n\n\n<li>Where contract is terminated on the ground of the other party's breach, performance measure of damage is normally claimable. But the plaintiff may instead elect to claim reliance measure of damage (\uc774\ud589\uc774\uc775\uc744 \ucd08\uacfc\ud558\uc9c0 \uc54a\ub294 \ubc94\uc704 \ub0b4\uc5d0\uc11c \"\uc2e0\ub8b0\uc774\uc775\" \ubc30\uc0c1\uc744 \uc120\ud0dd\ud558\ub294 \uac83\ub3c4 \uac00\ub2a5). \ub300\ubc95\uc6d0 2002. 6. 11 \uc120\uace0 2002\ub2e42539 \ud310\uacb0, \ub300\ubc95\uc6d0 2003. 10. 23 \uc120\uace0 2001\ub2e475295 \ud310\uacb0 (The costs incurred in reliance of the contract are claimable.&nbsp; The costs which are usually incurred for the purpose of concluding the contract and readying oneself for the performance of the contract are claimable regardless of whether the other party knew about such costs.&nbsp; Any costs over and above the usual costs are claimable only to the extent foreseeable by the other party. However, the amount claimable under the reliance measure of damage may not be more than the performance measure of damage.)<\/li>\n<\/ul>\n\n\n\n<p><strong>3. Damages must be real and measurable<\/strong><\/p>\n\n\n\n<ul class=\"wp-block-list\">\n<li>Hypothetical possibilities not to be compensated.<\/li>\n\n\n\n<li>Reasonable degree of certainty is enough: 2001Da22833<\/li>\n\n\n\n<li>However, difficulty of assessment is no bar to an award of damages<\/li>\n\n\n\n<li>2000Da5817, 2004Da48508 (The court may determine the quantum \u201con the basis of the totality of all relevant facts emerged from the proofs and pleadings\u201d)<\/li>\n\n\n\n<li>Chaplin v. Hicks [1911] 2 K.B. 786 (a candidate in a beauty competition was, in breach of contract, not allowed to compete in a later stage of the competition)<\/li>\n<\/ul>\n\n\n\n<p><strong>4. Loss which must be compensated<\/strong><\/p>\n\n\n\n<ul class=\"wp-block-list\">\n<li>causation: deals with \"what loss\" must be compensated<\/li>\n\n\n\n<li>ordinary loss\/special loss: deals with \"how much\" of the loss must be compensated<\/li>\n\n\n\n<li>ordinary loss, Art 393(1):\n<ul class=\"wp-block-list\">\n<li>the loss which would obviously arise in the ordinary course of things viewed from an objective standpoint.<\/li>\n\n\n\n<li>the defendant may not plead that the loss was not foreseeable for him (for it was objectively foreseeable)<\/li>\n\n\n\n<li>2004Gahap9444 (dairy cow meat)<\/li>\n\n\n\n<li>95Da11344 (a lorry hitting an electricity pole, causing the power cut which lasted for more than 12 hours. Farmers sustained loss from the frosting of flowers which were being grown in the nearby green houses. Held, the loss was not foreseeable.)<\/li>\n\n\n\n<li>damnum emergens + lucrum cessans<\/li>\n\n\n\n<li>Art. 51(2) of Sale of Goods Act 1979 of UK (Damages for non-delivery) The measure of damages is the estimated loss directly and naturally resulting, in the ordinary course of events, from the seller\u2019s breach of contract.<\/li>\n\n\n\n<li>Art. 53(2) of Sale of Goods Act 1979 of UK (Damages for breach of warranty) The measure of damages for breach of warranty is the estimated loss directly and naturally resulting, in the ordinary course of events, from the breach of warranty.<\/li>\n<\/ul>\n<\/li>\n\n\n\n<li>special loss, Art 393(2):\n<ul class=\"wp-block-list\">\n<li>the loss which occurred because of the special circumstances<\/li>\n\n\n\n<li>Special loss needs to be compensated only when it was foreseeable (at the time of the contract (Art 74 of CISG)? or at the time of the breach?)<\/li>\n\n\n\n<li>84Daka1532 (Daewoo)<\/li>\n\n\n\n<li>91Da29972 (cotton T-shirts)<\/li>\n\n\n\n<li>Art. 54(1) of Sale of Goods Act 1979 of UK: Nothing in this Act affects the right of the buyer or the seller to recover interest or special damages in any case where by law interest or special damages may be recoverable, or to recover money paid where the consideration for the payment of it has failed.<\/li>\n<\/ul>\n<\/li>\n<\/ul>\n\n\n\n<p><strong>5. 'Reference date' for damage assessment<\/strong><\/p>\n\n\n\n<ul class=\"wp-block-list\">\n<li>General principle: at the close of hearing (\ubcc0\ub860\uc885\uacb0 \uc2dc\uc810) \uc9c0\uc6d0\ub9bc 1115\uba74.<\/li>\n\n\n\n<li>However, special rules apply:\n<ul class=\"wp-block-list\">\n<li>Buyer's loss in the event of repudiation\/impossibility of the seller's performance: loss assessed at the time of the breach. Subsequent increase of the market price can only be a \"special loss\" (claimable only when foreseeable by the seller), subsequent decrease of the market value is irrelevant (because it is not the buyer's property, therefore buyer has no reason to bear the loss from the downward fluctuation) 94Da61359, 2005Da63337<\/li>\n\n\n\n<li>Where the buyer claims damages in lieu of performance against the seller who is in delay, the damage calculation must be done as of the time when the seller fails to comply with the buyer\u2019s demand for performance within a reasonably extended deadline. This is the moment when the buyer definitively gives up the claim for the performance and seeks damages in lieu of performance. 66Da1842<\/li>\n<\/ul>\n<\/li>\n\n\n\n<li>Seller's loss in the event of buyer's repudiation:\n<ul class=\"wp-block-list\">\n<li>If the seller terminated the contract and subsequently sold the thing to a third party at a lower price (assuming that it is not 'unusually low'): the difference between the two prices plus interest between the original due date and the date on which the lower price was received (2004Da3543).<\/li>\n\n\n\n<li>If the seller terminated the contract but did not sell the thing: the difference between the contract price and the market value of the thing at the close of hearing (because that is the \"economic benefit which remains with the seller in the case of termination\").<\/li>\n\n\n\n<li>If the seller terminated and subsequently sold the thing at a higher price than the economic benefit the seller would have obtained if the original contract had been properly performed on time by both parties (contract price+interest from the original due date), then no loss. Hence no damage.<\/li>\n\n\n\n<li>If the seller terminated and chose to retain the thing: the difference between the \"economic benefit the seller would have obtained if the original contract had been properly performed\" (original contract price plus interest from the original due date) and the market value of the thing at the close of hearing. If the price drop in the meantime was unforeseeable by the buyer, seller may not claim. The seller may not disregard the appreciation of the market value in the meantime (whether foreseen or unforeseen by the buyer). Benefit does not need to be foreseeable. It is only the loss which needs to be foreseeable if the compensation is to be ordered.<\/li>\n\n\n\n<li>If the seller does not terminate the contract in spite of the buyer's repudiation, then the seller shall be entitled only to a delay damage (if the thing sold was already delivered) plus specific performance. Seller cannot normally claim delay interest on the purchase price if the seller does not surrender possession of the thing sold and enjoys the possession of the thing sold.<\/li>\n<\/ul>\n<\/li>\n<\/ul>\n\n\n\n<p><strong>6. Liquidated damages, Art. 398(1)<\/strong><\/p>\n\n\n\n<ul class=\"wp-block-list\">\n<li>Agreement as to the amount of loss, in advance of a breach<\/li>\n\n\n\n<li>Actual amount of loss is irrelevant. No need to prove, nor is it possible to disprove the amount of loss.<\/li>\n\n\n\n<li>Excessive amount of liquidated damages would justify court's intervention<\/li>\n\n\n\n<li>The court can, even if the party does not claim a reduction, reduce the amount of damage.&nbsp; \ub300\ubc95\uc6d0 2009. 2. 26 \uc120\uace0 2007\ub2e419051 \ud310\uacb0<\/li>\n\n\n\n<li>Penalty v. liquidated damages<\/li>\n\n\n\n<li>In common law, penalty clause is invalid<\/li>\n<\/ul>\n\n\n\n<p>7. Comparative negligence, duty to mitigate<\/p>\n\n\n\n<p>comparative negligence: Articles 396, 763<\/p>\n\n\n\n<p>'duty to mitigate' 2003Da22912<\/p>\n\n\n\n<p><span style=\"font-family: Noto Sans CJK KR Regular, sans-serif;\"><span lang=\"ko-KR\">\uc2e0\uc758\uce59 \ub610\ub294 \uc190\ud574\ubd80\ub2f4\uc758 \uacf5\ud3c9\uc774\ub77c\ub294 \uc190\ud574\ubc30\uc0c1\uc81c\ub3c4\uc758 \uc774\ub150\uc5d0 \ube44\ucd94\uc5b4 \ubcfc \ub54c<\/span><\/span>, <span style=\"font-family: Noto Sans CJK KR Regular, sans-serif;\"><span lang=\"ko-KR\">\ubd88\ubc95\ud589\uc704\uc758 \ud53c\ud574\uc790\uc5d0\uac8c\ub294 \uadf8\ub85c \uc778\ud55c \uc190\ud574\uc758 \ud655\ub300\ub97c \ubc29\uc9c0\ud558\uac70\ub098 \uac10\uacbd\ud558\uae30 \uc704\ud558\uc5ec \ub178\ub825\ud558\uc5ec\uc57c \ud560 \uc77c\ubc18\uc801\uc778 \uc758\ubb34\uac00 \uc788\uc73c\uba70 \ud53c\ud574\uc790\uac00 \ud569\ub9ac\uc801\uc778 \uc774\uc720 \uc5c6\uc774 \uc190\ud574\uacbd\uac10\uc870\uce58\uc758\ubb34\ub97c \uc774\ud589\ud558\uc9c0 \uc54a\uc744 \uacbd\uc6b0\uc5d0\ub294 \ubc95\uc6d0\uc774 \uadf8 \uc190\ud574\ubc30\uc0c1\uc561\uc744 \uc815\ud568\uc5d0 \uc788\uc5b4 <a href=\"http:\/\/academynext.lawnb.com.oca.korea.ac.kr\/Info\/ContentView?sid=L000001706_763_20020114\">\ubbfc\ubc95 \uc81c<\/a><\/span><\/span><a href=\"http:\/\/academynext.lawnb.com.oca.korea.ac.kr\/Info\/ContentView?sid=L000001706_763_20020114\">763<span style=\"font-family: Noto Sans CJK KR Regular, sans-serif;\"><span lang=\"ko-KR\">\uc870<\/span><\/span><\/a>, <span style=\"font-family: Noto Sans CJK KR Regular, sans-serif;\"><span lang=\"ko-KR\"><a href=\"http:\/\/academynext.lawnb.com.oca.korea.ac.kr\/Info\/ContentView?sid=L000001706_396_20020114\">\uc81c<\/a><\/span><\/span><a href=\"http:\/\/academynext.lawnb.com.oca.korea.ac.kr\/Info\/ContentView?sid=L000001706_396_20020114\">396<span style=\"font-family: Noto Sans CJK KR Regular, sans-serif;\"><span lang=\"ko-KR\">\uc870<\/span><\/span><\/a><span style=\"font-family: Noto Sans CJK KR Regular, sans-serif;\">\ub97c \uc720\ucd94\uc801\uc6a9\ud558\uc5ec \uadf8 \uc190\ud574\ud655\ub300\uc5d0 \uae30\uc5ec\ud55c \ud53c\ud574\uc790\uc758 \uc758\ubb34\ubd88\uc774\ud589\uc758 \uc810\uc744 \ucc38\uc791\ud560 \uc218 \uc788\uace0<\/span>, <span style=\"font-family: Noto Sans CJK KR Regular, sans-serif;\"><span lang=\"ko-KR\">\ud55c\ud3b8 \uc190\ud574\uc758 \ud655\ub300\ub97c \ubc29\uc9c0\ud558\uac70\ub098 \uacbd\uac10\ud558\ub294\ub370 \uc801\uc808\ud55c \ubc95\uc801 \uc870\uce58\uac00 \uc874\uc7ac\ud558\ub294 \uacbd\uc6b0 \uc774\ub294 \uc190\ud574\uacbd\uac10\uc870\uce58\uc5d0 \ud574\ub2f9\ub420 \uc218 \uc788\uace0<\/span><\/span>, <span style=\"font-family: Noto Sans CJK KR Regular, sans-serif;\"><span lang=\"ko-KR\">\ud53c\ud574\uc790\uac00 \uadf8 \ubc95\uc801 \uc870\uce58\ub97c \ucde8\ud568\uc5d0 \uc788\uc5b4 \uac10\ub2f9\ud558\uae30 \uc5b4\ub824\uc6b4 \ub9ce\uc740 \ube44\uc6a9\uc774 \uc18c\uc694\ub41c\ub2e4\ub4e0\uac00<\/span><\/span>, <span style=\"font-family: Noto Sans CJK KR Regular, sans-serif;\"><span lang=\"ko-KR\">\uadf8 \uacb0\uacfc\uac00 \ubd88\ud655\uc2e4\ud558\ub2e4\uac70\ub098<\/span><\/span>, <span style=\"font-family: Noto Sans CJK KR Regular, sans-serif;\"><span lang=\"ko-KR\">\ud310\ub2e8\uc744 \ubc1b\uae30\uae4c\uc9c0 \ud604\uc800\ud558\uac8c \ub9ce\uc740 \uc2dc\uac04\uc774 \ud544\uc694\ud558\ub2e4\ub294 \ub4f1\uc758 \uc0ac\uc815\uc774 \uc5c6\uc74c\uc5d0\ub3c4 \ubd88\uad6c\ud558\uace0 \ud569\ub9ac\uc801\uc778 \uc774\uc720 \uc5c6\uc774 \uadf8 \ubc95\uc801 \uc870\uce58\ub97c \ucde8\ud558\uc9c0 \uc544\ub2c8\ud55c \uacbd\uc6b0\uc5d0\ub294 \uadf8 \uc190\ud574\ud655\ub300\uc5d0 \uae30\uc5ec\ud55c \ud53c\ud574\uc790\uc758 \uc758\ubb34\ubd88\uc774\ud589\uc758 \uc810\uc744 \uc190\ud574\ubc30\uc0c1\uc561\uc744 \uc815\ud568\uc5d0 \uc788\uc5b4 \ucc38\uc791\ud560 \uc218 \uc788\ub2e4<\/span><\/span>.<\/p>\n\n\n\n<p>Keechang Kim, \"<a href=\"http:\/\/asianbusinesslawyer.korea.ac.kr\/xe\/Archives\/282\" target=\"_blank\" rel=\"noopener noreferrer\">Measure of Damages under Korean Contract Law<\/a>\", 2 Asian Business Lawyer (2008)<\/p>\n\n\n\n<p>Damage v Cost or expenses: 99Da9646<\/p>\n\n\n\n<p>Art 74, CISG<\/p>\n\n\n\n<p>Damages for breach of contract by one party consist of a sum equal to the loss, including loss of profit, suffered by the other party as a consequence of the breach. Such damages may not exceed the loss which the party in breach foresaw or ought to have foreseen at the time of the conclusion of the contract, in the light of the facts and matters of which he then knew or ought to have known, as a possible consequence of the breach of contract.<\/p>\n\n\n\n<p>FIDIC Standard Conditions of Contract (for Construction, EPC\/Turnkey Projects, Plant and Design Build) template clause:<\/p>\n\n\n\n<blockquote class=\"wp-block-quote is-layout-flow wp-block-quote-is-layout-flow\">\n<p>Neither Party shall be liable to the other Party for loss of use of any Works, loss of profit, loss of any contract or for any indirect or consequential loss or damage which may be suffered by the other Party in connection with the Contract...<\/p>\n<\/blockquote>\n\n\n\n<p class=\"western\"><i>Croudace Construction Ltd v Cawoods Concrete Products Ltd<\/i> [1978] 2 Lloyd's Rep. 55 at 62. (\u2018consequential\u2019 does not cover any loss which directly and naturally results in the ordinary course of events from late delivery)<\/p>\n\n\n\n<p class=\"sdfootnote-western\">Ferryways NV v Associated British Ports [2008] 1 C.L.C. 117 at 138<\/p>\n\n\n\n<p class=\"sdfootnote-western\"><i>Koufos v C. Czarnikow Ltd. <\/i>[1969] 1 A.C. 350 at 385 (Sugar price falling, delivery of sugar delayed for 9 or 10 days. Loss of profit must be compensated. Forseeable loss = directly and naturally caused loss?): \"The crucial question is whether, on the information available to the defendant when the contract was made, he should, or the reasonable man in his position would, have realised that such loss was sufficiently likely to result from the breach of contract [...]\"<\/p>\n\n\n\n<p>\uae40\uae30\ucc3d, \u201c\uacb0\uacfc\uc801 \uc190\ud574 \ub610\ub294 \uac04\uc811\uc801 \uc190\ud574\u201d\uc5d0 \ub300\ud55c \uba74\ucc45 \uc870\ud56d\uc758 \ud574\uc11d- \uc601\uad6d \ubc95\uc6d0\uc758 \uacc4\uc57d \ud574\uc11d \uc0ac\ub840 \ubc0f \uc2dc\uc0ac\uc810 - \ube44\uad50\uc0ac\ubc95, \uc81c28\uad8c \uc81c2\ud638(2021)<\/p>\n\n\n\n<p class=\"western\"><i>&nbsp;<\/i><\/p>\n<div class=\"pdfprnt-buttons pdfprnt-buttons-post pdfprnt-bottom-left\"><a href=\"https:\/\/lawlec.korea.ac.kr\/index.php?rest_route=%2Fwp%2Fv2%2Fposts%2F539&print=pdf\" class=\"pdfprnt-button pdfprnt-button-pdf\" target=\"_blank\" ><\/a><a href=\"https:\/\/lawlec.korea.ac.kr\/index.php?rest_route=%2Fwp%2Fv2%2Fposts%2F539&print=print\" class=\"pdfprnt-button pdfprnt-button-print\" target=\"_blank\" ><img decoding=\"async\" src=\"https:\/\/lawlec.korea.ac.kr\/wp-content\/plugins\/pdf-print\/images\/print.png\" alt=\"image_print\" title=\"Print Content\" \/><\/a><\/div>","protected":false},"excerpt":{"rendered":"<p>1. 'Difference' theory Damages should correspond to the difference between the economic position in which the aggrieved party finds himself as a result of a breach (infringement) and the economic position in which the party would have been absent the breach (infringement). 2. 'Performance' measure v. Reliance measure 3. Damages must be real and measurable <a href=\"https:\/\/lawlec.korea.ac.kr\/?p=539\" class=\"more-link\">...continue reading<span class=\"screen-reader-text\"> \"Damages\"<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[5],"tags":[],"class_list":{"0":"post-539","1":"post","2":"type-post","3":"status-publish","4":"format-standard","6":"category-obligations-i","7":"h-entry","8":"hentry","9":"h-as-article"},"_links":{"self":[{"href":"https:\/\/lawlec.korea.ac.kr\/index.php?rest_route=\/wp\/v2\/posts\/539","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/lawlec.korea.ac.kr\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/lawlec.korea.ac.kr\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/lawlec.korea.ac.kr\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/lawlec.korea.ac.kr\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=539"}],"version-history":[{"count":7,"href":"https:\/\/lawlec.korea.ac.kr\/index.php?rest_route=\/wp\/v2\/posts\/539\/revisions"}],"predecessor-version":[{"id":4243,"href":"https:\/\/lawlec.korea.ac.kr\/index.php?rest_route=\/wp\/v2\/posts\/539\/revisions\/4243"}],"wp:attachment":[{"href":"https:\/\/lawlec.korea.ac.kr\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=539"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/lawlec.korea.ac.kr\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=539"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/lawlec.korea.ac.kr\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=539"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}