미국법상 약속적 금반언에 기한 전계약적 책임 = Precontractual Liability Based on Promissory Extoppel under American Law

다국어 초록 (Multilingual Abstract)

Since parties in entering the contract strongly wish to maximize the possibility of its successful completion, they spent substantial amount of time in negotiation. During this negotiation, a party often might mislead other party to think the contract would be entered although they have not formalized the contract yet. Relying on such appearance, the other party might result in incuring the expense in preparing so that he or she can successfully enter the contract.
Under such circumstance, Korean law provides the remedy for the other party based on tort law since there is no contract has been established. On the other hand, the American law classifies the different basis for precontractual liability(unjust enrichment resulting from the negotiations, misrepresentation made during the negotiations, agreement to negotiation in good faith, specific promise made during the negotiations-promissory estoppel).
Especially the American case(Hoffman v. Red owl Stores) has found the precontractual liability by ruling that the act of reliance by the promisee to his detriment provided a substitute for consideration and promissory estoppel. furthermore, such promissory estoppel originally was invoked as a substitute for consideration rendering a gratuitous promise enforcible as a contract. However, under Hoffman case, it is not clear when promissory estoppel should be applied. Not only that, the court does not illustrate the extent of damage the court could provide under promissory estoppel.
After Hoffman case, there are many different theories relating to promissory estoppel in precontractual liability. Different theories argue whether promissory estoppel is based on torts law or contract law or both or either. However, it seems that which part of civil law that promissory estoppel is based on does not matter if promissory estoppel provides the basis for remedy under precontractual liability. In order to accomplish the above goal we need to come up with more stable and definite formular for its application and damages for the loss.

목차 (Table of Contents)

• Ⅰ. 서론
• Ⅱ. 전계약적 책임(Precontractual Liability)
• Ⅲ. 약속적 금반언의 원칙 일반론
• Ⅳ. 약속적 금반언 원칙의 요건과 효과
• Ⅴ. 결론
• 【참고문헌】
• [Abstract]

참고문헌 (Reference)

1 엄동섭, "영미법상 계약교섭에 결렬에 다른 책임" (35) : 78-110, 2007

2 이영준, "민법총칙" 2007

3 이병준, "계약의 합의로 인한 구속력과 계약협상의 부당파기의 한계" (25) : 20-, 2004

4 Yorio & Thel, "the Promissory Basis of Section 90" 101 : 111-, 1991

5 Fuller & Perdue, "The Reliance Interest in Contract Damages (Parts 1 & 2)" 46 : 52-, 1936

6 DeLong, "The New Requirement of Enforcement Reliance in Commercial Promissory Estoppel: Section 90 as Catch-22" 943-, 1997

7 Schwartz and Scott, "Red Owl Stores and Myth of the Precontractual Reliance" 68 : 1-, 2007

8 Henerson, "Promissory Estoppel and Traditional Contract Doctrine" 78 : 343-, 1969

9 Feiman, "Promissory Estoppel and Judicial Method" 97 : 868-, 1984

10 Klein & Bachechi, "Precontractual Liability and the Duty of Good Faith Negotiation in International Transactions" 17 : 1-, 1994

11 Farnsworth, "Precontractual Liability and Preliminary Agreements: Fair Dealing and Failed Negotiations" 87 : 217-, 1987

12 Johnston, "Investment, Information, and Promissory Liability" 152 : 1923-, 2004

13 Scott, "Investment, Information, and Promissory Liability" 152 : 1923-, 2004

14 Goetz & Scott, "Enforcing Promises: An Examination of the Basis of Contract" 89 : 1261-, 1980

15 Burton & Andersen, "Contractual Good Faith: Formation, Performance, Breach, Enforcement ㎣ 8.4-8.5"

16 Farnsworth, "Contracts" 1998

17 Barnett & Becker, "Beyond Reliance: Promissory Estoppel, Contract Formalities, and Misrepresentations" 15 : 443-, 1987

18 Nedzel, "A Comparative Study of Good Faith, Fair Dealing, and Precontractual Liability" 12 : 97-, 1997