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False Advertisement, Induced Mistake, and Tortious Liability
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분양광고에 의하여 유발된 착오와 표시광고법상 책임

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Type
Academic journal
Author
Journal
한국재산법학회 재산법연구 재산법연구 제35권 제4호 KCI Accredited Journals
Published
2019.1
Pages
31 - 63 (33page)

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False Advertisement, Induced Mistake, and Tortious Liability
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Abstract· Keywords

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The Korean Supreme Court denies the buyer of a condominium the right to rescind the sales contract even when the buyer mistook some factors important for the contract and the seller’s negligent or innocent misrepresentation, especially seller’s false advertisement, induced the mistake, on the reason that it is a mistake on motive. Instead, it has granted the buyer a tortious claim for damages, the amount of which is assessed by the gap between the contract price and the hypothetical just price considering the falsehood of the advertisement. In a recent case rendered on July 23. 2015, the Korean Supreme Court ruled that the damages cannot be claimed any more when the seller rescinded the contract and, more importantly, not the assignee of the sales contract but the assignor, the original buyer, can sue for damages when the sales contract was assumed by another. The former ruling is agreeable, and more importantly, shows that the tortious damages in this case is in fact a disguised form of contractual adjustment. In addition, it would be shown that the mistake defense should have been allowed in this case if it were not a case of the condominium sale which entailed various types of risks the buyer should bear. A total rescission of the contract cannot be allowed here because otherwise the mistaken party would have an opportunity to exempt oneself from the losing contract. Lastly, it also reveals the reason why the latter ruling is flawed.
#mistake on motive #misrepresentation #advertisement #losing contract #contractual adjustment #assignment of contract

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References (34)

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김민규 / 2016 / 공동주택 분양자의 정보제공(설명)의무와 수분양자의 자기결정권 - 거래적 불법행위책임과 계약책임의 성립 여부에 대하여 - / 토지법학 32(1):1~55 dbpia 김민규 / 2016 / 집합건물 분양자의 정보제공의무와 그 책임법리 - 오륙도 SK View 아파트 분양사건을 중심으로 - / 토지법학 32(2):151~194 dbpia 김상중 / 2011 / 부당 표시․광고에 대한 민사법적 규율 － 표시광고법에 따른 규제와의 관계에서 그 내용과 한계 － / 경영법률 21(3):197~239 dbpia 김상중 / 2006 / 상품의 표시․광고와 계약의 내용 - 건물분양계약을 중심으로 한 고찰 - / 서강법학 8 dbpia 김재형 / 2009 / 분양광고와 계약 -청약,유인,손해배상을 중심으로- / 민사판례연구 (31):395~448 dbpia

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