1. Facts
When A and B signed a contract to lease an officetel, A decided to provide floor heating to B as a special contract.
However, A suggested that heating be done in other ways, such as carpets or electric panels, instead of underfloor heating. B sent a confirmation text to A, saying, “Finally, the floor construction can’t be done without carpets and electric panels?” After sending the text message, B immediately notified the cancellation of the contract.
A suggested another alternative to B, emphasizing the illegality of the underfloor heating construction and the difficulty of the construction. However, B did not finally adopt another alternative.
2. Rules
Article 390 of the Civil Code has the title of ‘Non-performance and compensation for damages’. “If the obligee fails to perform in accordance with the contents of the obligation, the obligee may claim compensation for damages. However, this is not the case when performance becomes impossible without the debtor’s intention or negligence.” The civil law adopts the general clause principle regarding default.
Article 544 of the Civil Code has the title of ‘Delayed Implementation and Revocation’. “When one of the parties fails to perform its obligation, the other party may set a reasonable period and give a peremptory notice of its performance, and if it fails to perform within the specified period, the contract may be rescinded. However, in cases where the debtor has expressed his intention not to perform in advance, no suffrage is required.” If the debtor expresses his/her intention to refuse performance in the state of delay in performance of the obligation, the creditor may rescind the contract without admonishing the performance.
Furthermore, if the debtor clearly expresses his/her intention not to perform the contract in the contract, the creditor may rescind the contract on the ground of the debtor’s refusal to perform or claim damages against the debtor even before the performance period.
In this case, whether the debtor has clearly expressed his/her intention not to perform the contract shall be judged by comprehensively examining the actions of the parties regarding the performance of the contract and the specific circumstances before and after the contract.
In the case of contract cancellation due to refusal to perform as described above, neither the best of the creditor is required nor the provision of performance of one’s own debts that are in a simultaneous performance relationship. Since the requirements for contract cancellation are relaxed compared to cancellation due to delay in performance, the intention to refuse performance should be seen as clear and final.
In order to acknowledge the tacit refusal to perform by taking into account various circumstances at the time of the contract or thereafter, the intention of refusal must be clearly recognized in the circumstances, except in cases where the intention to refuse performance is explicitly expressed.