유엔통일매매법상 계약해제시 물품의 반환불능과 책임

정진명 ( Jin Myung Chung ) 단국대학교 법학연구소 2013 법학논총 Vol.37 No.4

Avoidance of the contract causes the legal responsibility to make restitution to the other party as legal effects for breach of contract of one or both parties. However, if the destruction or deterioration of the all goods or part of the goods that a buyer has to make restitution to a seller occurs, it causes the problem about whether the buyer loses the right to declare the contract avoided or has to pay only the costs not to be returned not losing the right to declare the contract avoided. For this, clause 1 of art 82 in CISG claims that the right to declare the contract avoided or the right to deliver substitute goods becomes extinct in principle if it is impossible for him or her to make restitution of the goods substantially in the condition in which he received them and clause 1 of art 82 in CISG regulates that the right to declare the contract avoided or the right to deliver substitute goods can not be lost unless a buyer is not to make restitution substantially in the condition in which he received them only according to his guilty. However, art 82 regulates only general rules, so various interpretative problems have been raised. It decides if goods are transformed fundamentally before the buyer avoids contract, but it does not regulate liabilities about transformation. It does not have the regulation for the parties to distribute the risk for the case that the goods received are in the impossibility of restitution either. Furthermore, it concerns only the right to declare the contract avoided by a buyer, so it remains in problems if it applies to the right to declare the contract avoided by a seller, and to the case of the impossibility of restitution after the right to declare the contract avoided. CISG shows the clearer and more objective figures than our civil law because it constructs the conditions for avoidance of the contract in uniformity, considering the specific situation of international sales. This kind of legislative method was admitted to the Principles of International Commercial Contracts and the Principles of European Contract Law, and had an influence on German Civil Law revised in 2001. CISG has been in effect in Korea since March, 1st in 2005, and has given a lot of implication to the work of Korean Civil Code reform since 2009. Therefore, this paper is going to investigate risk of loss of the goods and liability of restitution in the case of avoidance of the contract which is regulated in art 82.

CISG상 계약해제의 효과와 각국 판결례에 관한 고찰

최성수 ( Choi Sung-soo ) 단국대학교 법학연구소 2017 법학논총 Vol.41 No.1

CISG는 계약해제에 관한 규정을 두고 있다. 계약해제를 어느 정도 인정할 것인가는 입법정책의 문제이나, 협약은 계약유지의 이념에 입각하여 가능한 계약해제를 제한적으로 인정하고 있다. 매수인은 매도인의 계약 또는 협약상의 본질적 계약위반에 대하여 계약을 해제할 수 있고(협약 제49조 (1) (a)), 매도인의 인도 불이행의 경우에 매수인이 정한 부가기간 내에 물품을 인도하지 아니하거나 그 기간 내에 인도하지 아니하겠다고 선언한 경우 계약을 해제할 수 있다.(협약 제49조 (1) (b)). 매도인 역시 매수인의 계약 또는 협약상 본질적 계약위반에 대하여 계약을 해제할 수 있고(협약 제64조 (1) (a)), 매수인이 매도인이 정한 부가기간 내에 대금지급 또는 물품수령의무를 이행하지 아니하거나 그 기간 내에 그러한 의무를 이행하지 아니하겠다고 선언한 경우 계약을 해제할 수 있다(협약 제64조 (1) (b)). 그리고 협약상 계약해제의 특수한 경우라고 할 수 있는 것으로 협약 제51조, 협약 제72조, 협약 제73조 등을 들 수 있다. 이와 같이 협약은 계약해제에 관하여 비교적 상세하게 규정하고 있고, 기본적으로 계약해제는 본질적 계약위반(협약 제25조)의 경우에 해제를 할 수 있도록 허용함으로써 협약이 취하고 있는 계약유지의 이념에 충실하고 있다. 그런데 계약해제는 사실상 계약이 없었던 것과 같은 상태로 되돌리는 점에서 매매당사자에게 미치는 영향은 매우 크다. 이에 협약은 협약 제81조 내지 제84조에 걸쳐서 계약해제의 효과에 대하여 상세하게 규정하고 있다. 계약해제의 기본적인 효과는 양당사자로 하여금 그들의 주요한 이행의무로부터 해방시키고 더 이상 그들의 의무들을 이행할 필요가 없게 하는 것이다. 매도인으로서는 물품을 인도하거나 소유권을 이전할 필요가 없어지고, 매수인으로서는 대금을 지급하거나 물품의 수령할 의무가 없어지게 되는 것이다. 본고에서는 계약해제의 효과에 관한 제 쟁점을 다루면서 특히 각 쟁점에 관한 각국의 판례의 태도와 경향은 어떠한지 살펴보고, 이를 통하여 실무와 우리나라 법원의 판례에 유사사례에서 참고가 될 수 있도록 하고자 했다. The CISG has rules governing avoidance of contract. The extent to which the avoidance of contract is to be granted is a matter of legislative policy, but the Convention restricts the possible avoidance of contracts based on the idea of contract maintenance. The buyer may avoid the contract when the seller`s failure to perform its contractual obligations amounts to a fundamental breach of contract as defined in article 25 (article 49 (1) (a)) or where the goods have not been delivered, if the seller fails to deliver them within an additional period of time fixed in accordance with article 47 (article 49 (1) (b)). The seller may also avoid the contract if the buyer`s failure to perform its contractual obligations amounts to a fundamental breach of contract as defined in article 25 (article 64 (1) (a)) or if the buyer fails to pay the price or to take delivery of the goods within an additional period of time fixed pursuant to article 63 (article 64 (1) (b)). Article 51(2), 72, 73 also provides special rules for avoiding contracts. As such, the Convention provides a relatively detailed description of the avoidance of the contract, and basically allows the avoidance of the contract in the event of a fundamental breach of contract(article 25). The effect of the avoidance of the contract on the trading party is very critical in that it actually restores the same condition as the contract was not made. Accordingly, the Convention provides for the effect of the avoidance of contract in detail in articles 81 to 84 of the Convention. The fundamental effect of a contract avoidance is that both parties are free from their primary performance obligation and no longer have to fulfill their obligations. The seller will no longer have to deliver the goods or transfer ownership, and the buyer will have no obligation to pay or receive the goods. The purpose of this paper is to examine the attitudes and tendencies of the judicial precedents of each issue on the effects of avoidance of the contract, and to make reference to the practice and the case in Korea.

흠 있는 법률행위 또는 계약해제로부터 보호되는 제3자의 적격성

김동호 민사법의 이론과 실무학회 2010 民事法理論과 實務 Vol.14 No.1

Most of jurists and lawyers do not clearly distinguish between the conception of the third party protected from defective contracts and that of the third party protected from avoided contracts in our country. But only about the third party acquired an interest of the right formed from the contract, they mostly agreed to telling that he is the third party protected from defective contracts, on the other hand, is not the third party protected from avoided contracts. The legislations of different countries are various. Even Japan's civil code, despite having been leavening our civil code very much and holding the many similarities to our legislations, has not regulations to protect the third party in psychological reserved representation, representation by mistake and compulsed representation. The nations that holds no regulation about false representation are continuously expanding the protection of the third party by precedents and theories. Except our country and Japan, there are no progress in regulations or legal theories to protect the third parties from avoidance of contracts. In the country, there are regulations to protect the third parties not only from all shapes of defective contracts but also from avoidance of contracts, but the regulative expressions are different each other. And the reason is not clear still in the thinking of the Korean civil-code-makers, besides the substantial reason that the regulative expressions should be different is not found to us. In the light of natures of defective contracts and avoidance of contracts, the protection of third party is more necessary in avoidance of contracts. Therefore it could be right in avoidance of contracts to allay the conception of third party, on the other hand, it could not be right in defective contracts to fortify the conception of third party. I think so. Looking from the perspective of legal causes of rights, it is topical to plead details from a legal cause of right as the pleas against the exercise of right, and it is not reasonably different in the case of defective contracts and avoidance of contracts. The argument that the right of the third party is the one included the possibility of losing his right in the case that the contract is avoided seems to potentially have a point. But it is not right to make the eligibility of third party strict only in the case of avoidance of contract and on the basis of the difference of legal causes of rights. In the light of the point that it should be same in defective contracts, the point that the legal idea of the protection of third party should include both of the persons that took the right from the very defective or avoided contract and the persons that took the right from the new legal cause based on the very contract and the point that centrifugal force is stronger to deny the effect and to make restitution in the case of defective contract than in the case of avoided contract. In conclusion, the conception of the third party protected from defective contracts and that of the third party protected from avoided contracts are not different but same. All the buyers and legal seizers of the bond from the contract avoided should be regarded the very third parties protected from avoided contracts.

국제물품매매협약상 계약해제의 효과

허해관 국제거래법학회 2011 國際去來法硏究 Vol.20 No.1

The avoidance of contract under CISG transforms the original contractual relationship into a winding-up or restitutionary relationship. When the contract is avoided, both parties are released from their primary performance obligations,while provisions in the contract that govern the rights and obligations of the parties after avoidance survive the avoidance. Under the winding-up relationship, the buyer has to return to the seller the very goods supplied by the seller; the seller has to return the price to the buyer in the currency of payment, whether this is different from the currency of account or not. If both parties are bound to make restitution, it has to be done concurrently. If only one party has performed, then restitution takes place unilaterally. These retitutionary obligations on avoidance are contractual and are not based on the unjust enrichment rules of any applicable domestic law. The place of restitution is to be determined by the general principles on which the CISG is based. The general principles can be found in the CISG provisions governing the place of delivery (Article 31) and the place of payment (Article 57)under the original contract. Thus, if, at the time of the avoidance of the contract the parties knew that the goods were at a particular place, the buyer have to return the goods at that place (Article 31(b)), and, in other cases, at the place where the buyer had his place of business (Article 31(c). The seller have to return the price to the buyer at the buyer’s place of business Article 57(1)(a). The costs of restitution should be borne by the unexempted non-performing party. For instance, the cost of carriage for shipping the goods back to the seller should be borne by the unexempted buyer if the seller avoided the contract, but by the unexempted seller if the buyer avoided the contract. As to the time of restitution,the unilateral restitution by the seller or buyer, as a general principle under Article 7(2), has to take place within a reasonable time upon or after avoidance of the contract. Upon avoidance, by way of concomitant equalization of benefits, the seller refunding the price to the buyer has to also pay interest on it from the date on which the price was paid, while the buyer has to account to the seller for all benefits which he has derived from the goods. As the seller’s duty to pay interest is based on the theoretical possibility to use the money, it is the interest rate at the seller’s place of business that should be applied. However the buyer’s duty to account for benefits is based on actual and net benefits, while the buyer’s own use of goods also constitutes a benefit which has to be restituted. When the goods cannot be returned in a substantially unimpaired condition, the buyer has to restitute by means of a surrogate, which includes the commodum ex re and the commodum ex negotiatione.

契約上 共通의 錯誤에 관한 연구

윤진수 한국민사법학회 2010 民事法學 Vol.51 No.-

The issue of mutual mistke in contract became a controversial topic in Korea recently. The Korean Supreme Court has been dealing with this issue in two ways. In some cases, mutual mistake was recognized as a ground of avoidance of contract. In other cases, the court opined that the contract can be adapted to what might have been agreed had the mistake not occurred. The views of the commentators are divided. Some assert that mutual mistake cannot be a ground of avoidance, but only termination of contract should be allowed. If other party is willing to perform the obligation as the party who wishes to end the contract has expected, however, the contract remains valid. This theory is based on the “Lehre der Geschäftsgrundlage”(a modified form of the clausula rebus sic standibus doctrine) originated from Germany. Others insist that the adaptation of contract is possible by way of the constructive (supplementing)interpretation, but the avoidance of contract should not be permitted. Still others believe that there is no reason not to allow the avoidance, but this should be an ultima ratio when the adaptation of the contract by way of constructive interpretation is not possible. From the comparative perspective, many jurisdictions recognize the avoidance of contract based on mutual mistake. Meanwhile, there are some jurisdictions in which the avoidance is the last resort when the adaptation cannot be achieved. Recent international model rules such as PECL and DCFR have followed the latter path. In my opinion, this “adaptation first, avoidance next" rule is the best method to deal with the issue of the mutual mistake. Constructive interpretation functions as the theoretical basis of the adaptation. This rule enhances economic efficiency as well.

국제물품매매계약에 관한 국제연합협약상 계약해소에 관한 일고찰

진홍기 한국경영법률학회 2016 經營法律 Vol.26 No.2

The United Nations Convention on Contracts for the International Sale of Goods(‘CISG’), which more than 80 countries entered as Member States, became into enforcement in Korea on March 1, 2005. This means that the CISG is the international legal regime regulating Korean enterprises who trade with foreign companies. There are several prominent provisions in the CISG, setting up basic norms for the international trade such as ‘remedy’, ‘monetary damages’, ‘specific performance’, and ‘contract avoidance’. The provisions relating to the ‘contract avoidance’ are the most important ones in relation to mutual conflicts between the contracting parties. The general provision regulating the ‘contract avoidance’ is the CISG 25. However among its wording, ‘fundamental breach’ is not only controversial, inviting thorough exploration, but also arouses further investigation for its application to the specific international sale of goods trade. However, developed countries such as Germany and Japan have recently revised their Contract Law according to the CISG regimes in terms of contract cancellation (avoidance). Tracing back to the birth of the ‘contract avoidance’ regimes in the CISG, the relevant wording had been introduced and employed by the case laws in the Anglo-American law. Furthermore, the CISG provides independently several requirements(conditions) to apply the CISG 25 and declare contract avoidance; ‘substantial detriment test’ and ‘the foreseeability component’. In addition, the CISG provides procedural regulations relating to the serving notice of avoidance and allows sellers to fix the performance as the preconditions for the buyers to declare ‘the contract avoided’, even though a aggrieving party(seller) committed the fundamental breach of the contract. In this context, this essay examines and explores various regimes with regard to the contract cancellation(avoidance) and tries to find out the solution for the exact meaning of the wording in the CISG. And it maneuvered the Civil and the Common law regimes in terms of contract avoidance. Finally, it suggests the revision of the Korean Civil Code relating to the contract cancellation(avoidance) according to the relevant CISG provisions. 우리나라가 가입하여 2005년 3월 1일부터 발효된 CISG는 국제물품매매에 있어서 중요한 준거법이 되었다. CISG에서 중요한 규정들은 금전 손해배상, 특정이행 그리고 계약무효와 같이 피해자를 구제하기 위해 두어진 것들이다. 특히, CISG 제 49조와 제 64조에 의하면, 계약 당사자는 일정한 경우에 이미 체결된 ‘계약이 무효라고 선언할 수 있다’고 규정하고 있는데, 이러한 계약해소의 효과는 대륙법계의 ‘소급효’가 부여된 엄격한 의미에서의 원상회복은 아닌 것으로 보인다. 왜냐하면 CISG는 영미법계의 계약해소 법리의 영향도 받았기 때문이다. 한편, CISG 제 25조에서 말하는 ‘계약을 무효로 하는’ 효과가 발생하는 사건으로 들고 있는 계약의 ‘본질적(중대한) 위반’이라는 사고의 틀은 1950년대 영국계약법에서 비롯되었지만, 그럼에도 불구하고 CISG는 여기에 경도되지 않고 CISG만의 독자적인 구조를 가지고 있다. 즉, CISG는 ‘손해’를 입은 당사자의 ‘계약상 및 예상이익’이라는 개념에 바탕을 두고, 그가 입은 ‘손해’라는 관점에서 ‘계약의 본질적 위반’을 정의하고 있다. 아울러 CISG는, 대륙법계인 독일의 유예기간주의 법리에 영향을 받아 계약을 위반한 당사자에게 계약을 이행할 수 있도록 합리적인 기간을 추가로 주어야만 비로소 계약을 무효로 할 수 있도록 하는 부가기간설정 제도도 두고 있다. 위와 같은 CISG의 ‘계약의 본질적 위반’을 중심으로 한 계약해소법리(구조)는 국제상사계약원칙, 유럽계약법원칙은 물론이고 독일민법과 일본민법의 개정에도 큰 영향을 미쳤다. 그렇다면 우리도 CISG의 계약해소 구조(법리)를 우리 법제에 맞게 받아들여, 대륙법적인 채무불이행의 유형에 집착하지 않고 또, ‘채권·채무’의 차원으로부터 한 단계 높여 영미법적인 ‘계약’이라는 큰 틀에서 접근하여 계약법을 논의하는 것이 바람직하다.

PICC상 계약취소 사유와 관련 판례에 관한 고찰

김호 ( Kim Ho ) 경상대학교 법학연구소 2018 法學硏究 Vol.26 No.2

PICC는 구속력이 있는 조약은 아니지만, 국제상사계약 작성의 지침이 되고 국제상사계약에서 발생하는 법적 분쟁의 해결 기준이 되며, 법의 일반원칙으로서 또는 국제상사계약에 관한 국내법 및 국제법을 해석함에 있어 입법적 흠결을 보완하는 gap-filler로서 법적 효용성을 지니고 있다. 본 논문은 PICC 제3장 (유효성) 제2절 (계약취소사유)에 규정된 조항의 법적 기준을 해석하고 관련 판례를 검토함으로써 PICC상 계약취소 사유의 법적 기반을 탐구하는데 중점을 두고 있다. 이를 통해 본 논문은 계약취소 요건에 관한 보다 명확한 이해를 제공하고 계약취소에 관한 조항을 계약에 적용하는 능력을 향상시킬 것으로 기대한다. PICC는 착오를 이유로 하는 계약취소에 높은 기준을 설정하고 있다는 점에서 매우 제한적이라 평가받고 있다. 또한 판례에서 드러나듯 PICC를 적용하는 분쟁해결기관은 현저한 불균형 및 계약취소의 통지에 관한 요건을 엄격하게 적용하고 있으므로, 상인간 계약에서 이러한 요건을 충족하는 것은 비교적 어려운 일이다. 그럼에도 불구하고, 집적된 판례는 PICC 조항의 의미를 명확히 함으로써 PICC의 적용에 관한 예견가능성을 향상시키는데 도움이 된다. 계약취소의 사유와 관련하여, 여러 판례에서 PICC 관련 조항상의 특정 요건들, 예를 들어 착오의 중대성 심사기준, 착오, 사기, 강박 및 현저한 불균형, 고지의무, (사기적) 불고지, 중과실의 존재, 상당한 시간의 의미를 정제하고 있다. PICC는 특히 중재의 경우 계약당사자간의 합의에 의해서뿐만 아니라 법의 일반원칙 또는 적용 가능한 국내법을 보완하는 법원으로서 적용되고 있으므로, PICC 조항에 관한 이해를 높이는 것이 중요하다. 또한 PICC 특정 조항의 의미는 분쟁해결기관이 당해 조항을 실제 상황에 적용한 결과인 판례를 통해 구체화되므로, 판례의 발전 추이에도 특별한 관심을 가져야 할 것이다. Although the Principles of International Commercial Contracts (PICC) are not a convention having a binding force, the PICC effectively have the legal benefit of being used as directions in writing an international commercial contract, as a legal standard for settling disputes arising from international commercial contracts, as general principles of law or as a gap-filler in interpreting domestic or international laws on international commercial contracts. This article focuses on examining the legal bases for grounds for avoidance of a contract under the PICC by focusing on the interpretation of the legal standard of the provisions of Chapter 3 (Validity), Section 2 (Grounds for Avoidance) of the PICC and the cases determined thereunder. By doing this, this article may provide a clear understanding of the requirements for avoidance of a contract and enhanced ability to apply such provisions to a contract. The PICC are said to be very restrictive since they set high requirements for avoidance of a contract for mistake. And as found in some cases, tribunals apply the requirements of gross disparity and notice of avoidance strictly and it is relatively difficult to meet the requirements in the contracts between business persons. Nevertheless, case law helps to improve foreseeability concerning the application of the PICC by clarifying the meaning of the provisions of the PICC. With respect to the grounds for avoidance of a contract, case law refines certain requirements of the relevant provisions of the PICC including the standard of review on the materiality of mistake, the existence of a mistake, fraud, threat, gross disparity, a duty to inform, a (fraudulent) non-disclosure, gross negligence, and a reasonable time in a given situation. Since the PICC, particularly in the case of an arbitration, have been applied not only by the parties’ agreement to do so, but also as general principles of law or a supplementary source for the applicable domestic law, it is important to improve the understanding of the provisions of the PICC. In addition, since the content of a particular provision of the PICC is materialized by case law where tribunals apply the provision to real-life situations, special consideration should also be given to the development of case law.

CISG상 중대한 계약위반과 계약해제에 관한 규정해석과 판결례에 관한 연구

심종석(Chong-Seok Shim) 법무부 국제법무정책과 2012 통상법률 Vol.- No.107

Art. 25 defines the term fundamental breach, which is used in various provisions of the CISG. A fundamental breach as here defined is a prerequisite for certain remedies under the CISG, including a party’s right to avoid the contract under arts. 49(1)(a) and 64(1)(a), and a buyer’s right to require delivery of replacements for goods that failed to conform to the contract. In general art. 25 defines the border between situations giving rise to regular remedies for breach of contract, like damages and price reduction, and those calling for more drastic remedies, such as avoidance of contract. Art. 49 specifies the conditions under which the buyer is entitled to declare the contract avoided. Avoidance under art. 49 is available in two situations: if the seller’s failure to perform its contractual obligations amounts to a fundamental breach of contract as defined in art. 25 or if the seller fails to deliver the goods within an additional period of time fixed in accordance with art. 47. Art. 64 identifies situations in which the seller may declare the contract avoided because the buyer is in breach of one or more of its obligations. The rules mirror those of art. 49 governing the buyer’s right to declare the contract avoided for breach by the seller. The effects of avoidance are governed by articles 81 to 84. Art. 72 entitles a seller or a buyer to avoid the contract if it becomes clear before the date for performance that the other party will commit a fundamental breach. However, art. 49 rather than art. 72 applies if, at or after the date for performance, a party’s failure to perform or nonconforming performance amounts to a fundamental breach. Arts. 81-84 are entitled effects of avoidance, only the first of its provisions, art. 81, is devoted exclusively to this topic. Art. 84, also provides for certain consequences of avoidance of contract, but at least some of those consequences also apply when the contract is not avoided and the buyer demands delivery of substitute goods under art. 46. Arts. 82-83 are a matched pair that do not at all address the effects of avoidance, that is, art. 82 imposes a limit on an aggrieved buyer’s right to avoid, art. 83 preserves other remedies for an aggrieved buyer that has, under art. 82, lost the right to avoid or demand substitute goods.

주택분양보증에 따라 승계시공이 이루어진 경우의 법률관계

김창희(Kim, Chang-Hee) 원광대학교 법학연구소 2010 圓光法學 Vol.26 No.3

This research paper examines the en banc decision of the Supreme Court, 2003Da45267, decided on May 25, 2006, with a critical view. At first, the Court approved that if the original seller in the sales contracts for each unit of an apartment building with individual buyers becomes financially insolvent, and assigns its rights on the contracts as well as building construction to the guarantee including a housing cooperative, and the guarantee resumes building construction through the succession procedure of the construction, the sales contracts between the original parties, the seller and the potential buyers through their purchase guarantee agreements, would be implicitly avoided because these parties have mutually agreed on avoidance of the contracts. I disagree on the Court's reasoning which regards such "implicit intent" of the parties to avoid the sales contracts as "mutual consents" between them to terminate the contracts under the above-mentioned circumstances. Such an interpretation of the parties' intent is beyond the statutory meaning of intent. Second, the Court also held that when the sales contracts had been terminated, avoidance of the contracts would be affected only in the future, not retrospectively in the past, since tearing down the buildings, which have been constructed as the performance of the contracts, would be socially and economically detrimental to our communities. However, such grounds of this holding is not persuasive. Unlike this reasoning, I would rather argue that legal obligations between the original contracting parties will be retrospectively terminated in case of avoidance of the contracts. Since the land, on which the building is built, is still owned by the original seller, even though avoidance of the sales contracts in units affects the validity of the contracts retrospectively, the seller does not need to demolish its building, but rather looks for new purchasers for the building.

국제물품매매에서 계약해제의 효과에 관한 고찰

하강헌(Kang-hun Ha) 한국국제상학회 2011 國際商學 Vol.26 No.3

Article 81 sets forth the two consequences which result from the avoidance of the contract. As to the future, the parties are released from their obligations. As to the past, they must return what has been supplied or paid under it. The avoidance does not affect and provisions of the contract for the settlement of dispurtes or any other provision of the contract governing the rights and obligations of the parties consequent upon the avoidance of the contract. Article 82 sets forth a limitation of the right to declare the contract avoided when the buyer is unable to return i.e. when physical restitution of the goods has become impossible. Several exceptions to this rule are stated in paragraph (2). The buyer retains the right to declare the contract avoided if the impossibility to restitute the goods. Thus, if goods lacking conformity disappear owing to the buyer’s negligence the latter cannot declare the contract avoided. The buyer would, however, lose the right to declare the contract avoided if it appeared that he were liable for the destruction. The buyer retains the right to declare the contract avoided if the has resold, consumed or transformed the goods, thus rendering physical return impossible. The buyer received or could have received interest up to the date of reimbursement : the seller is therefore accountable for it. Furthermore, the buyer must account to the seller for all the benefits which he has derived from the goods or part of them.