The Supreme Court(2001Da79013) acknowledged delay of obligee pursuant to Article 400 of Civil Code, but denied the transfer of risk pursuant to Article 538 of Civil Code. The reason is that there was no offer of a performance by obligor.
Civil Code ...
The Supreme Court(2001Da79013) acknowledged delay of obligee pursuant to Article 400 of Civil Code, but denied the transfer of risk pursuant to Article 538 of Civil Code. The reason is that there was no offer of a performance by obligor.
Civil Code Article 400 requires a offer of a performance to establish the delay of obligee. However, the Supreme Court said that if the creditor is firmly reject the receipt, delay of obligee would be established without offer of a performance by obligor. But on the other hand, it called for the offer of performance in order to provide an important result of delay of obligee: risk transfer. Therefore, the existing general statement about the effect of the delay of obligee, might be changed by this decision. Target judgment case have the three characteristics related to risk transfer. The first is that there was no offer of a performance. Second, the real estate was the target point, and the third is the matter is expropriation rather than the destruction of subject. Of course, the Supreme Court denied on the basis of risk transfer only the first point. In other words, even on the basis of that verbal offer it will accept the risk transfer. But I would like to raise the question of “rightness” of acknowledge of risk transfer only by verbal off