계약의 성립과 청약의 구속력 = Formation of the Contract and Irrevocability of the Offer

다국어 초록 (Multilingual Abstract)

Under the traditional model of contract formation, a contract are made by mutual assents or agreement. Contracts are the product of the will of the parties, so that it is the willingness to be bound of the parties that justifies legal recognition of enforceable contractual rights and obligations, or an remedy in breach of contracts within the ratification of the law. To resolve the disputes whether or not an offer and an acceptance were matched, the law looks for an offer by an offeror and an acceptance of the terms of the offer by the offeree. It may be difficult to state with confidence whether a particular statement was an offer, an invitation to treat, or a part of continuing process of negotiation between the parties because of its varying degrees of the process. Much will depend on how far a court is willing to go in filling in any gaps left by the parties. But the law cannot impose an agreement on the parties against the intention of the parties in case of vague or incomplete terms though it may purport to the interest of the reasonableness and the fairness. Korean Civil Law § 527 states an offer cannot be revoked. Though an offer may be resulted in the formation of a contract, an offer is only a proposal to enter into a contract to make an power of acceptance, not a contract. So before an acceptance by the offeree within the time of an acceptance has occurred, an offer may be revoked. The irrevocability of an offer may give rise to doubt about the freedom of the contract. The revocability of an offer may be purchased by the power of acceptance created by an offer based on the intention of the offeror. The intention may be implied. But if the offeree has communicated an acceptance to an offeror, or an offer invites to a contractual undertaking, it is reasonable for an offeree to rely on the offer and the offeree has acted in reliance on the offer, an offer cannot be revoked.

참고문헌 (Reference)

1 김기창, "청약의 구속력과 계약자유" 12 (12): 2005

2 이은영, "채권각론" 박영사 2007

3 김형배, "채권각론" 박영사 2001

4 김상중, "의사표시의 효력과 계약관계의 합의해지" (5) : 2004

5 谷口地平, "신판 주석민법(13)" 有斐閣 1996

6 송덕수, "신민법강의" 박영사 2009

7 김욱곤, "승낙의 효력발생시기에 관한 일고찰" (5) : 1994

8 김욱곤, "불란서민법에 있어서의 원인론" (8) : 1997

9 김형배, "민법학강의" 신조사 2009

10 곽윤직, "민법주해(Ⅶ)" 박영사 1997

11 지원림, "민법강의" 홍문사 2009

12 內田貴, "민법Ⅱ" 동경대학출판회 2007

13 명순구, "미국계약법입문" 법문사 2009

14 양창수, "독일민법전" 박영사 2008

15 김용균, "근로자의 퇴직의사표시의 철회의 허용여부" (17) : 1992

16 최흥섭, "근로계약의 합의해지와 민법 제527조" 1996

17 박영복, "계약체결전단계의 법규범화" 10 : 2001

18 이은영, "계약구속력의 근거, 법률학의 제문제;유기천박사고희기념" 박영사 1988

19 함윤식, "계약교섭의 부당파기로 인한 책임, 민사판례연구(ⅩⅩⅦ)" 박영사 2005

20 윤진수, "美國 契約法上 Good Faith 原則" 법학연구소 44 (44): 40-93, 2003

21 "The United Nations Convention on Contracts for the International Sale of Goods"

22 Janet O'Sullivan, "The Law of Contract, 3rd ed" 2008

23 "Restatement (second) of Contracts"

24 Knapp, Crystal, "Problems in Contract Law, 6th ed" 2007

25 Ole Lando, "Principles of European Contract Law, Parts Ⅰ and Ⅱ" Kluwer Law International 2000

26 Ewan McKendrick, "Contract Law, 3rd" 2008

27 Karl Larenz, "Allgemeiner Teil des deutschen Bürgerlichen Rechts, 6. Aufl" 1983