• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.58
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• pp.59-98
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• 2013

Risk of loss is a term used in the law of contracts to determine which party should bear the burden of risk for damage occurring to goods after the sale has been completed, but before delivery has occurred. Under the Uniform Commercial Code (UCC), there are four risk of loss rules, in order of application. First, it is agreement that is the agreement of the parties controls. Second, the breaching party is liable for any uninsured loss even though breach is unrelated to the problem. Hence, if the breach is the time of delivery, and the goods show up broken, then the breaching rule applies risk of loss on the seller. Third, the delivery by common carrier other than by seller is necessary: Risk of loss shifts from seller to buyer at the time that seller completes its delivery obligations; If it is a destination contract, then risk of loss is on the seller; If it is a delivery contract, then the risk of loss is on the buyer. Fourth, if the seller is a merchant, then the risk of loss shifts to the buyer upon buyer's receipt of the goods. If the buyer never takes possession, then the seller still has the risk of loss. This paper discusses problems of risk of loss under the American law. Specifically, this paper focuses on the interpretation of UCC sections and analysis of various cases. By comparing, also, UCC and Korean law, the paper proposes some implications of risk of loss issues for Korean law.

• International Commerce and Information Review
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• v.14 no.4
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• pp.203-225
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• 2012

This paper investigates the difference of writing requirements between the UCC2. and the UN convention on international sales of goods (CISG). To do it, the U.S writing requirement by statute of frauds was introduced by two sources of laws including common law and UCC${\S}$2-201. Although the U.S. statute of frauds requires some contract to be written with formalities, the way the requirement is satisfied is quite flexible in terms of its formalities. The UCC is more flexible than the common law in its formalities. The CISG does not require the sales contract to be written with any format, which is totally different from the U.S statue of frauds. Such differences between the U.S laws and CISG in writing requirement were investigated in the context of conflicts of laws.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.62
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• pp.135-178
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• 2014

The Uniform Commercial Code (UCC) sets the standards of good faith in a commercial transaction for the sale of goods. With every sales contract, there is an implied obligation for both the seller and the buyer to negotiate the contract and perform under the terms of the contract in good faith. The agreement between both parties and the customs in the industry determine how the good faith standard should be applied to a particular transaction. Generally, the meaning of good faith, though always based on honesty, may vary depending on the specific context in which it is used. A person is said to buy in good faith when he or she holds an honest belief in his or her right or title to the property and has no knowledge or reason to know of any defect in the title. In section 1-201 of the UCC good faith is defined generally as "honesty in fact in the conduct or transaction concerned." Article 2 of the UCC says "good faith in the case of a merchant means honesty in fact and the observance of reasonable commercial standards of fair dealing in the trade." The sales contract will generally determine which party is required to perform first. This provision helps to determine if the buyer or the seller is in breach of the agreement due to failing to perform as stated by the contract. Either the seller must deliver the items before the buyer is required to accept and pay or the buyer must pay for the items before the seller has the duty to act in good faith and deliver the items in a reasonable manner. If the contract does not specifically define who is required to perform, industry customs and fair trade may determine what is acceptable for the transaction. Under the UCC, the buyer is required to pay for the goods when they are delivered, unless the contract states otherwise. Therefore, the UCC imposes an obligation of good faith on the performance of every contract or duty under its purview. The law also generally requires good faith of fiduciaries and agents acting on behalf of their principals. This article discusses problems of the principles of good faith under the UCC. Specifically, this paper focuses on the interpretation of UCC sections and analysis of various cases. By comparing, also, UCC and Korean law, the paper proposes some implications of good faith issues for Korean law.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.12
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• pp.405-427
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• 1999

Although Uniform Customs and practice for Documentary(UCP) is not a law, it applies to most documentary credits and is binding on all parties unless otherwise expressly stipulated. Besides, Uniform Commercial Code(UCC) Article 5 was codified by the United States and was adopted by every state. Moreover, the New York version of the UCC Article 5-102(4) specifically providing that the UCC does not apply to letters of credit where the parties agree to be governed by the UCP. Identical nonuniform Articles were latter added in Alabama, Arizona, and Missouri. The fact that courts in forty-six of the fifty states are bound by Article 5. Until now, Article 5 of the UCC has probably had an impact on the decisions in New York and the New York common law. Therefore, I examined a few issues on application between Article 5 of the UCC and the UCP. First, although the UCP attempt to introduce a new for examination of document by incorporating "standard practice of financial institutions" and "international banking practice", the standards for documentary compliance are not clear. The UCC attempt to rely on the matter of interpretation for the court, but the UCP would probably be interested in examining in about bank's internal practices as reflected in UCP Articles. Second, the rule for nondocumentary conditions is a useful for stand-by credit transactions under the UCC, but these conditions would probably put the bank in an even worse position in case of documentary credit transactions under the UCP. Third, the UCP does not contain any provision governing the fraud exception, but the UCC codified the fraud and forgery rules developed through American case law. Fourth, the UCP treats the issue of transfer in much more detail than the UCC does. In contract, the UCP's treatment of assignment of proceeds is brief. Finally, I suggest that the fraud exception rules should be prescribed in the UCP in order to protect the issuing bank and the applicant when an unscrupulous party attempts to defraud.

• Korean Business Review
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• v.12
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• pp.303-321
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• 1999

Electronic commerce, driven by the development of the Internet and computer, premises to be an important engine for growth for the world economy in th the 21st century. Electronic commerce offers considerable new opportunities for the business and citizens in all regions of the world by enhancing productivity across of our economics and encourage trade in both goods and services. Specially in relation to contract, electronic commerce requires a coherent, coordinated approach internationally on key issues such as a validity, a legality, consumer protection. Electronic commerce, which breaks down national boundaries and widens the gap between the place where services are performed and the place where they are consumed, requires a new paradigm when making an between contracting parties.

• The Korean Journal of Air & Space Law and Policy
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• v.32 no.1
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• pp.3-51
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• 2017

From a historical point of view, while the Warsaw Convention was passed in 1924 to regulate the unified judicial responsibility in the global air transportation industry, protection of airline consumers was somewhat lacking in protecting air carriers. In principle, the air carrier does not bear any obligation or liability when the aircraft is not operated normally due to natural disasters such as typhoon or heavy snowfall. However, in recent years, in developed countries such as the US and Europe, there has been a movement in which regulates the air carriers' obligation to protect their passengers even if there is no misconduct or negligence. Furthermore, the legislation of such advanced countries imposes an obligation on the airlines to compensate the loss separately from damages in case the abnormal operation of the aircraft is not caused by force majeure but caused by their negligence. Under this historical and international context, Korea is also modifying the system of aviation consumer protection by referring to other foreign legislation. However, when compared with foreign countries, our norm has a few drawbacks. First, the airline's protection or care obligations are mixed with the legal liability for damages in the provision, which seems to be due to the lack of understanding of the airline's passenger protection obligation. The liability for damages, which is governed by the International Convention or the Commercial Act, shall be determined by judging the cause of the airline's liability in respect of the damage of the individual passenger in the course of the air transportation. However, the duty to care and the burden for compensation shall be granted to all passengers who feel uncomfortable with the abnormal operation regardless of the cause of the accident. Also, our compensation system for denied boarding due to oversale is too low compared to the case of foreign countries, and setting the compensation amount range differently based on the time for the re-routing is somewhat unclear. Regarding checked-baggage claim, it will be necessary to refund the fee only from the fact that the baggage is delayed without asking whether there is any damage occurred from the delayed baggage. This is the content of the duty to care, which is different from the current Commercial Act or the international convention, in which responsibility is different depending on whether the airline takes all the necessary measures in order to prevent delaying of the baggage. The content of force majeure, which is a requirement for exemption from the obligation to care passengers on the airplane, shall be reconsidered. Maintenance for safe navigation is not considered to be included in force majeure, and connection to airplanes, airport conditions are disputable. According to the EC Regulation, if the cause of the abnormal operation of the airline is force majeure, the airline's compensation obligation is exempted but the duty to care of airline company is still meaningful. Furthermore, even if the main role of aviation consumer protection is on an airline, it is the responsibility of government agencies to supervise the fulfillment of such protection obligations. Therefore, it is necessary for the Korean government to actively take measures such as enforcing incentives for airlines that faithfully fulfill their obligation to care and imposed penalties on the contrary.