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하삼주 한국기업법학회 2007 企業法硏究 Vol.21 No.3
The casualty to the goods in the international trade may occur in a various situation. It may happen while the seller holds the goods before delivering them to a carrier or to the buyer, while the goods are in transit, while the buyer is examining the goods and while the buyer holds the goods after rejecting them. Usually the loss will be covered by insurance. Allocating the risk of loss between seller and buyer should reflect considerations such as these: Which party is in a better position to evaluate the loss and press a claim against the insurer and to salvage or dispose of damaged goods? Who can insure the goods at the least cost? Who is more likely to carry insurance under standard commercial practice? What rules on risk will minimize litigation over negligence in the care and custody of the goods? Uniform Law for International Sales Under the 1980 UN Convention approaches the problem of risk in a manner that in general took account of the above considerations of policy and is consistent with modern sales law. However, as we can see at Art. 31, the rules on risk (and other issues) are complicated by the role given to the concept of deliverance. In the UNCITRAL proceedings the concept of deliverance is abandoned; instead, the Convention speaks of physical act of transfer of possession- the "handing over" of the goods to a carrier or to the buyer. The most important provisions in this area(Arts. 66-70) are in Articles 67, 69 and 70. Article 67 applies when the contract involves carriage of the goods. Article 69 applies when the buyer is to come for the goods. Article 70 deals with the effect of serious breach by the seller. Article 68 deals with a specialized and troublesome situation, the sale of goods while they are in transit.