국제물품매매협약상 손해경감의무

Abstract

Article 77 of CISG requires an aggrieved party, the promisee, claiming damages to take reasonable measures to mitigate losses. The reasonable measures required hereunder are limited to those that can be expected under the circumstances having regard to the principle of good faith. When taking suchmeasures, the aggrieved partymust do sowithin a reasonable time under the circumstances. The expenses incurred in taking such measures are recoverable from the promisor. If the aggrieved party fails to do so, the damages recoverable fromthe promisor are reduced in the amount the loss that should have been mitigated. The aggrieved party's duty tomitigate damages applies to claimfor damages only. That is, the violation of this duty should not be invoked against other remedies available under CISG, such as the right to claimspecific performance, the right to claimfor the price or the right of reduction of price. In practice, under the provision of article 77, the aggrieved party, the seller or the buyer, is often required to enter into a substitute transaction as ameasure to mitigate losses and many cases involving a substitute transaction are internationally reported. Therefore this paper intends to provide a certain understanding of the aggrieved party's duty to takemeasures tomitigate losses based on such cases reported.