Summary
Because restitution targets the performance to be returned and damages target the loss within the scope of liability, the mere overlap of the same item is not regarded as a basis for permitting double recovery.
6.1The Standard by Which the Path Opens
Increasing the number of remedies does not by itself justify recovering the same harm several times over. The rule that rescission or termination does not affect a claim for damages and the requirements for damages themselves are maintained together. Plaintiff A seeks to end the contract and recover what has already been paid, while also claiming the harm that arose from delay in performance. In this scene, unless one distinguishes whether the performance demanded and the harm demanded are different objects of recovery, the answer to whether the same detriment may be recorded repeatedly under different claim names becomes ambiguous. The question, then, is what standard opens the entrance to this remedy. If the preceding section accepts only the direction that a claim for damages remains even after the contract is ended, what remains is the question of how those two recoveries are divided and specified.
The text that grounds restitution governs the first side of the objects of recovery. Paragraph (1) of Article 548 of the Civil Act provides, "Where one party rescinds a contract, each party shall be obligated to make restitution to the other party," and the same paragraph contains the proviso, "This shall not prejudice the rights of third parties" (Article 548 of the Civil Act). Paragraph (2) then adds, "In the case of the preceding paragraph, interest shall be added to the money to be returned from the date it was received" (Article 548 of the Civil Act). The subjects aimed at by this text are the party who rescinded the contract and its counterpart, the act is the return of the performances each has already received, and the condition is the duty of restitution arising as an effect of rescission. What the performance to be returned is, is thus determined by this provision.
The text on the damages side requires a separate step of judgment. Paragraph (1) of Article 393 of the Civil Act provides, "Damages for non-performance of an obligation shall be limited to ordinary damages," and paragraph (2) restricts this: "As to damages arising from special circumstances, the obligor shall be liable only where the obligor knew or could have known of such circumstances" (Article 393 of the Civil Act). What must be specified here is not the performance to be recovered but the items of harm falling within the scope of liability, and whether a loss is ordinary damage or damage from special circumstances is determined separately as well. Only when the two distinctions are placed side by side are the demanded performance, party, and conditions specified in the statement of the claim, and only when one can defend the right underlying the chosen action does the standard that opens the entrance to this remedy take shape. The comparison of objects of recovery means precisely this task of separating the performance to be returned from the detriment to be compensated.
Yet the cost of an unclear boundary between restitution and harm remains in reality. Even if the same sum of money is viewed as the object of restitution and then set up again as an item of harm from delay, it is no easy matter to determine whether the items overlap. A counterargument that narrowing the plaintiff's freedom to place remedies together weakens the protection of the party placed in an uncertain situation also arises from that inconvenience. Article 551 of the Civil Act declares, "The rescission or termination of a contract shall not affect the claim for damages" (Article 551 of the Civil Act), and therefore the question cannot be answered by closing off the very path of a damages claim. That said, the same rule is not a basis for overlaying the two recoveries, and the same item cannot be added twice, without basis, to both the amount of restitution and the amount of damages. The amount of restitution and the amount of damages coexist only within the range in which each satisfies its own requirements.
Returning to the synthetic scene, the scope of this question is limited to which item the sum already paid that Plaintiff A seeks to recover and the claimed delay damages belong to. The contractual performance, tender of performance, demand, declaration of intent to rescind, object of restitution, and items of harm must be specified before the two recoveries can be divided. If it is a delay in performance for which a demand is required but the requirements of demand and non-performance are absent, or if the defense of simultaneous performance prevents an unconditional demand for performance from being asserted, the entrance is closed. Conversely, if the fact that an intention not to perform in advance had been expressed is confirmed, the necessity of a demand is judged anew. The present state, in which the simultaneous-performance relationship and whether there is a refusal of performance constituting an exception to the demand requirement remain unconfirmed, is left undetermined.
The conclusion permitted by this section is limited to the proposition that, where the respective requirements of performance, rescission, and damages are all satisfied and the performance to be returned and the harm to be compensated are specified without overlap, the entrance to this remedy opens. The mere fact that the number of remedies has been increased does not create a right to recover the same harm twice, and a request that places the same item in two accounts does not pass as such. Conversely, the entrance is not closed merely because the claim names differ, and where the object of restitution and the items of harm are separately specified, one side is not deemed abandoned on account of the other. The results of recovery or whether actual payment has been made are not addressed in this determination, nor is relief impossible merely because materials are lacking.
6.2The Conditions That Block Relief
In this scene, what has already been paid is the object of restitution, and the harm arising from delay in performance is the object of damages. If the same detriment is recorded repeatedly under different claim names, the question of which object of recovery the item belongs to is left undetermined, leaving room for the detriment to be recovered twice. The issue, therefore, is not the diversity of claim names but what conditions open the channel of relief. This section addresses the combination and scope of contractual remedies, and where restitution and damages are set out together, the requirements demanded of each must be established together. What is barred is not repeated writing as such but placing the same item in two places while the requirements remain unmet.
The provision corresponding to this question is found in Article 548 of the Civil Act, which prescribes the effects of rescission of a contract. Its paragraph (1) provides, "Where one party rescinds a contract, each party shall be obligated to make restitution to the other party," and paragraph (2) adds, "In the case of the preceding paragraph, interest shall be added to the money to be returned from the date it was received" (Article 548 of the Civil Act). The subjects indicated by this text are the party who rescinded and its counterpart, the act is the rescission of the contract, and the condition is the time of rescission. The duty of restitution is aimed at the performance to be returned, and the interest added to the money returned is an accessory of restitution measured from the date it was received. Since the same provision does not determine the requirements or the scope of damages, the items of damages are not filled merely by the effects of rescission.
Connecting that text with the settled conclusion of this section, the distinction between the objects of recovery reveals itself as it stands. The comparison of objects of recovery means the task of separating the performance to be returned from the detriment to be compensated. Restitution is aimed at the direction of recovering the performance already transferred, and damages are aimed at the direction of filling the harm within the scope of liability. Paragraph (1) of Article 393 of the Civil Act, which fixes the scope of damages, states, "Damages for non-performance of an obligation shall be limited to ordinary damages," and paragraph (2) states, "As to damages arising from special circumstances, the obligor shall be liable only where the obligor knew or could have known of such circumstances" (Article 393 of the Civil Act). Accordingly, the amount of restitution and the amount of damages are not slots in which the same item is overlaid but slots pointing to different objects of recovery. If this distinction collapses, the channel of relief closes; where it is a delay in performance for which a demand is required but the requirements of demand and non-performance are not met, or where the defense of simultaneous performance prevents an unconditional demand for performance from being asserted, that channel closes if any one of the statutory requirements is unsatisfied.
The most persuasive counterargument arises from the fact that, as to certain costs, the boundary between restitution and harm is unclear. Items remaining after the contract has ended may not clearly be either the performance to be recovered, the profit lost due to delay, or a cost bearing the character of both. The counterargument is also strengthened by the fact that narrowing a party's freedom to assert several remedies together in such an uncertain situation weakens protection, since the task of dividing claim names in advance may add to the burden of proof of a party lacking materials or reduce the opportunity for recovery. The author, however, takes the view that this counterargument does not change the conclusion. Even so, the same item cannot be added twice, without basis, to both the amount of restitution and the amount of damages. This answer does not erase the unfavorable aspect of the counterargument. A cost whose boundary is blurred may remain undetermined in the comparison of objects of recovery, but placing the same sum in two places on the ground of undetermined status is not permitted. What is barred is not the concurrence of claims but duplicate recovery; the freedom to assert them together is preserved, and only double counting of the same item is blocked.
The fact confirmed in the synthetic scene is that Plaintiff A seeks to recover what has already been paid and also claims the harm arising from delay in performance. Setting this fact against the foregoing conditions, what has already been paid can be separated as the object of restitution, and the harm arising from delay in performance as an item of harm. Whether it is a delay in performance for which a demand is required, whether the requirements of demand and non-performance have been satisfied, and whether the defense of simultaneous performance remains are likewise unconfirmed. Where the simultaneous-performance relationship, or whether there is a refusal of performance constituting an exception to the demand requirement, is unconfirmed, the matter is left undetermined. Since the synthetic scene contains no year or amount, neither the magnitude of harm nor the amount of restitution can be fixed on the basis of this scene.
The conclusion this section permits is narrow. Recording the same detriment repeatedly under different claim names is not itself prohibited, but without separating the performance to be returned from the harm to be compensated, one cannot place the same item in both the amount of restitution and the amount of damages. For the channel of relief to open, the requirements of restitution and of damages must each be satisfied, and the performance to be returned and the harm to be compensated must be specified without overlap. By contrast, the conclusion not permitted is equally clear. Even if the rule that rescission or termination does not affect a claim for damages is accepted (Article 551 of the Civil Act), the requirements of damages themselves are not satisfied by that rule alone. Where the requirements of demand and non-performance are absent, or where the defense of simultaneous performance prevents an unconditional demand for performance from being asserted, the channel of relief closes if any one of the statutory requirements is unsatisfied. A state of insufficient materials is undetermined, not immediately incapable of relief.
6.3The Boundary That Remains When There Is No Data
In this scene, the plaintiff is in a position where the same facts are easily recorded under two names. What this stage asks, therefore, is whether the same detriment may be recorded repeatedly under different claim names, and it proceeds together with the question of where the boundary lies that cannot be fixed for lack of materials.
Article 551 of the Civil Act provides, "The rescission or termination of a contract shall not affect the claim for damages" (Article 551 of the Civil Act). The subject indicated by this text is the party who rescinded the contract, the act is the pursuit of rescission together with a claim for damages, and the condition is that rescission itself does not extinguish the claim. The author reads this text to mean that the channel of the damages claim is open, and what and how much is recovered along that channel requires separate judgment.
Restitution and damages aim at different objects. Article 548 of the Civil Act, stating that "each party shall be obligated to make restitution to the other party" (Article 548 of the Civil Act), places the performance to be recovered as the object of restitution. By contrast, Article 393 of the Civil Act provides that "damages for non-performance of an obligation shall be limited to ordinary damages" (Article 393 of the Civil Act), taking the harm within the scope of liability as the object of damages. The reason the two steps diverge is that the one is the task of returning the performances originally exchanged, while the other is the task of specifying the detriment that liability reaches. The comparison of objects of recovery means precisely the task of separating these two.
Narrowing this distinction reduces the party's freedom to assert several remedies together and may weaken protection at the point where costs with an unclear boundary between restitution and harm arise. The author takes this disadvantage as it stands. Even so, recording one item twice on the sole ground that materials are lacking is not permitted. The amount of restitution is aimed at the return of the performance, and the amount of damages is aimed at the scope of liability; hence, the overlap of the same item is not itself a basis for permitting duplicate recovery.
In the synthetic scene, only the fact is fixed that Plaintiff A ends the contract and demands together the return of what has already been paid and damages for delay in performance. On this scene alone, one cannot determine the nature of the simultaneous-performance relationship, whether the requirements of demand and non-performance have been met in a delay in performance for which a demand is required, or whether the counterpart expressed an intention not to perform in advance. The judgment record comprising the contractual performance, tender of performance, demand, declaration of intent to rescind, object of restitution, and items of harm sets out what is to be confirmed, not what has been confirmed. Accordingly, matters that are not confirmed—such as the simultaneous-performance relationship or whether there is a refusal of performance constituting an exception to the demand requirement—are not declared impossible but left undetermined because the judgment materials have not been specified.
What this section permits is the task of placing the performance to be returned and the detriment to be compensated side by side and accounting for the two claims together, within the bounds of not using one item for both recoveries. Conversely, this section does not permit placing the same sum in the amount of restitution and in the amount of damages and adding them together. Nor does relief become impossible immediately on the ground that materials are lacking; "undetermined" means no more than that judgment materials remain to be confirmed.
6.4The Records Needed for Determination
Placing these two demands side by side gives rise to the question whether the same detriment may be entered repeatedly under different names of claims, and alongside it lies the question what materials are needed to make that determination. Merely attaching names does not multiply the objects of recovery into two.
The relevant statutory texts address this question by setting out two separate lines. Article 548 of the Civil Act provides that "when one of the parties rescinds the contract, each party owes the other a duty of restoration to the original state," and provides that interest shall be added to money to be returned from the date of receipt. Article 393 of the Civil Act provides that "damages arising from non-performance of an obligation are limited to ordinary damage." Here, restoration to the original state targets the performance to be returned between both parties to the rescission, while damages target the portion of the detriment arising from non-performance that falls within the scope of liability.
The reason these two targets part ways is that the objects of recovery differ. The comparison of the objects of recovery is the work of separating the performance to be returned from the detriment to be compensated, and that separation is precisely the criterion for stage determination. Under this criterion, the stage is determined solely from the materials recorded as to contractual performance, tender of performance, demand, declaration of intention to rescind, the object of return, and the items of damage, and the stage determination is made only on the established record. That Article 551 of the Civil Act provides that "the termination or rescission of a contract does not affect a claim for damages" means that the two claims may be placed together; it does not mean that the same item may be entered across both lines. Not filling gaps in the record with presumptions is likewise a condition for maintaining this separation.
The strongest counterargument targets the fact that there are costs whose boundary between restitution and damage is unclear. If it cannot be determined from the record alone whether a given expenditure is part of a performance already paid or a detriment newly arising from delay in performance, the worry remains that narrowing the party's freedom to assert several avenues together weakens protection in uncertain circumstances. Yet without erasing that adverse aspect, the fact that an item is hard to separate does not turn one object of recovery into two. The answer therefore stands that the same item may not be double-counted, without grounds, in both the amount to be returned and the amount of damages, and that item remains unresolved as to which line it belongs.
In the synthetic scenario, only the fact that Plaintiff A demands together what has already been paid and the damage arising from delay in performance is confirmed, and whether the two overlap in any item is not determined by the scenario. Records relating to the object of return and the items of damage must therefore come in before the boundary of the two demands can be drawn, and items for which no such record exists remain undetermined. So too does the case of delay in performance requiring a demand where the requirements of demand and non-performance are absent, or where the defense of simultaneous performance prevents the demand for performance from being enforced unconditionally; and likewise where the relationship of simultaneous performance or the fact of refusal of performance, which is an exception to demand, is unconfirmed.
What this section permits goes no further than separating, on the materials recorded, the objects of recovery for restitution and for damages, and reaching the judgment that prevents double-counting of overlapping items. What it does not permit is recovering the same detriment twice merely because the names differ, or filling in the stage with facts absent from the record. Costs whose boundary is unclear remain unassigned to either side, and that state does not itself mean that no relief is available.
6.5Circumstances That Change the Decision
That conclusion was to maintain together the rule that rescission and termination do not affect a claim for damages and the requirements of damages themselves. The part that touches on the question whether the same detriment may be entered repeatedly under different names of claims is now set apart. In this scenario, even where the names of the claims differ, the objects of recovery may overlap.
The original provisions relevant to this question are verified first. Article 548 of the Civil Act prescribes the duty of restoration to the original state owed by each party as an effect of rescission. Article 551 of the Civil Act declares that the termination or rescission of a contract does not affect a claim for damages. Article 393 limits the scope of damages arising from non-performance of an obligation to ordinary damage. The subjects and acts prescribed by the three provisions respectively differ. Restitution targets the relationship in which the party rescinding demands restoration to the original state from the other party, while damages target the scope of liability for damage arising from non-performance.
The reason these two orientations are distinct is that the objects of recovery themselves differ. Restitution targets the original state of the performance the plaintiff has already paid, while damages target the scope of liability for the detriment arising from non-performance, namely delay in performance. Thus the standing of the two claims side by side and the double counting of the same item are separate matters. Since restitution targets the performance to be recovered and damages target the damage within the scope of liability, the mere overlap of the same item is not a ground permitting double recovery.
The counterargument here targets the zone where the character of a cost is unclear. An expenditure may seep into the performance to be recovered, or it may enter the items of damage arising from delay. In such a situation, the criticism arises that a strict division of the two claims forces a party in uncertain circumstances into one side alone, weakening protection. The point that the party's freedom to assert several avenues together should not be narrowed is of the same tenor. The freedom to assert together and the double counting of the same recovery are distinct.
The facts confirmed in the synthetic scenario are that the plaintiff seeks to end the contract and recover what has already been paid, while also demanding damages arising from delay in performance. As the object of return, the performance already paid is placed, and as items of damage, the detriment arising from delay in performance is placed. This comparison merely marks the boundary between the amount to be returned and the amount of damages; which items actually overlap is not determined by the scenario alone. Whether it is a delay in performance requiring a demand, and whether there is a fact of a prior declaration of an intention not to perform, are also absent from the scenario. Those items therefore remain undetermined.
What this section permits is only this: not placing the same item in two positions merely because the names of the claims differ. What it does not permit is double-counting, without grounds, the same item in both the amount to be returned and the amount of damages.
6.6The Strongest Counterargument and the Answer
As examined earlier, merely entering the same detriment repeatedly under different names of claims does not constitute grounds for double recovery. Now, in the scenario where Plaintiff A seeks to end the contract and recover what has already been paid while also demanding damage arising from delay in performance, what remains is how to answer the strongest counterargument when there are costs whose boundary between restitution and damage is unclear.
The starting point of this problem is to determine what a claim for recovery after the end of a contract targets. Article 548, paragraph (1) of the Civil Act provides: "When one of the parties rescinds the contract, each party owes the other a duty of restoration to the original state; provided, however, that this may not prejudice the rights of third parties" (Article 548 of the Civil Act). The subjects prescribed by this provision are the party who rescinds the contract and the other party, and the act is the restoration to the original state owed by each to the other.
Article 393, paragraph (1) of the Civil Act provides that "damages arising from non-performance of an obligation are limited to ordinary damage" (Article 393 of the Civil Act), thereby making clear that the object targeted by damages is the detriment limited by the scope of liability. The comparison of the objects of recovery must accordingly be understood as the work of separating the performance to be returned from the detriment to be compensated. One targets the return of performance already transferred, the other the recompense of damage arising from non-performance; the two determinations must therefore not be mixed.
This distinction carries over into the criteria for stage determination. Once the comparison of the objects of recovery is made, the amount to be returned is specified by the scope of the performance to be returned, and the amount of damages by the items of damage within the scope of liability. At that point, Article 551 of the Civil Act merely confirms, by providing that "the termination or rescission of a contract does not affect a claim for damages" (Article 551 of the Civil Act), that rescission and a claim for damages may be maintained together. On the premise of maintaining this rule together with the requirements of damages themselves, the author holds that the mere circumstance that the same item is entered on both sides does not permit double recovery.
The strongest counterargument is concerned with the protection of parties in uncertain circumstances. When there are costs whose boundary between restitution and damage is unclear, narrowing the party's freedom to assert several avenues together entails the loss that items of ambiguous boundary may be omitted from recovery, and the inconvenience of reclassifying items in each lawsuit. Yet even leaving that adverse aspect of the counterargument unerased, the freedom in the choice of remedies is no reason to omit the comparison of the objects of recovery. Since the same item cannot be double-counted, without grounds, in both the amount to be returned and the amount of damages, the freedom is exercised within specification by grounds rather than by overlap of items.
The only fact confirmed in the synthetic scenario is that Plaintiff A seeks to end the contract and recover what has already been paid, while also demanding damage arising from delay in performance. Applying the comparison of the objects of recovery to this fact, what has already been paid can be specified as the object of return, and the damage arising from delay as items of damage. However, whether the contractual performance, tender of performance, demand, declaration of intention to rescind, object of return, and items of damage required as the record of determination have been secured, and how the relationship of simultaneous performance or the fact of refusal of performance stand, are not determined by the scenario. These matters remain undetermined.
What this section permits is separating the performance to be returned from the detriment to be compensated by means of the comparison of the objects of recovery, specifying each item accordingly, and then adding the two sides together; what it does not permit is double-counting, without grounds, the same item in both the amount to be returned and the amount of damages. The need for protection emphasized by the counterargument can be met by the work of specifying, without omission and on one side alone, items whose boundary is ambiguous.
6.7The Link to the Application and the Dispositive Part
The preceding section concluded that the same item cannot be double-counted, without grounds, in both the amount to be returned and the amount of damages. Accepting this premise, the present question is framed somewhat differently. May one, in this way, add names of claims and enter the same detriment several times?
The wording of the relevant statutory provisions is verified first. Article 548 of the Civil Act provides in paragraph (1) that "when one of the parties rescinds the contract, each party owes the other a duty of restoration to the original state," and adds in paragraph (2) that interest shall be added to money to be returned from the date of receipt. The subjects targeted by this provision are the respective parties who rescind the contract, the act is the return of the performance already rendered, and the condition is the rescission of the contract. Accordingly, the object handled by the claim for return is the performance itself that has passed to the other party.
Article 551 of the Civil Act declares that "the termination or rescission of a contract does not affect a claim for damages." This is not a provision meaning that rescission pushes out a claim for damages, but one that confirms the condition under which the two claims may stand side by side. Yet the fact that the claims may stand side by side and the determination that the two claims may recover the same item twice are separate stages. Since restitution targets the restoration of the performance held by the other party, and damages target the damage within the scope of liability, the mere circumstance that the same item is entered under two names does not justify double recovery.
The value this distinction reveals lies in broadening the freedom of claims. The strongest counterargument, however, points out that this boundary conceals real costs. Cases arise where the boundary between the performance to be returned and the damage is unclear, and there is the worry that narrowing the freedom to assert several avenues together weakens the protection of a party placed in uncertain circumstances. This point cannot be denied. The counterargument indeed has persuasive force. The answer the author settles upon, however, is maintained within this range. The circumstance that the boundary is blurred does not permit double-counting, without grounds, the same item in both the amount to be returned and the amount of damages. Rather than restricting the freedom to enter multiple names of claims together, it responds to the cost by first specifying what is to be recovered and then dividing it between the two entries.
Taking out only the facts relevant to this scenario, Plaintiff A, having ended the contract, demands together what has already been paid and the damage from delay in performance. Placing this demand within the comparison of the objects of recovery—that is, the work of separating the performance to be returned from the detriment to be compensated—what has already been paid is placed as the object of restoration to the original state under Article 548 of the Civil Act, and the detriment arising from the delay as damage within the scope of liability under Article 393 of the Civil Act. However, since no year, amount, or starting date is set in this scenario, it cannot be determined from the scenario alone whether the two items actually overlap, and if they do, which interval is duplicative. Nor is the relationship of simultaneous performance, or the fact of refusal of performance as an exception to demand, confirmed, so these must remain undetermined here.
Seen in this way, the conclusion of this section is a narrow one. The mere circumstance that the same detriment has been entered repeatedly under different names of claims does not permit double recovery, and the reason is the distinction that restitution targets the performance to be recovered while damages target the damage within the scope of liability. Conversely, this conclusion does not mean to bar the joinder of claims itself, nor to obstruct a claim for damages after rescission. Where the performance to be returned and the damage to be compensated are each specified and are confirmed to contain no overlap, the two claims may stand together.
6.8The Scope This Section Undertakes
The rule carried forward is that a claim for damages remains even where the contract has been rescinded or terminated. In this scene, the question is whether the item the plaintiff writes in is counted twice, depending on the name of the claim. Can the same detriment be recorded repeatedly under different names of claim? If restitution and damages aim at the same value, one must first decide what to leave when the two items overlap. This is why the provision on the restitution side—that interest shall be added to money to be returned from the date on which it was received—must be viewed together with the effects of rescission. (Civil Act Article 548)
Civil Act Article 548 provides: "Article 548 (Effects of Rescission; Obligation of Restitution) (1) Where one of the parties rescinds a contract, each party shall be under an obligation to restore the other party to its original state," and adds: "(2) In the case referred to in paragraph (1), interest on money to be returned shall be added from the date on which it was received" (Civil Act Article 548). In this text, the obligation of restitution is the obligation borne, at the time the contract is rescinded, by each party toward the other party. Those who have received money to be returned fall within its scope, being obliged to return it together with interest. This provision determines which things and moneys are to be returned when a contract is rescinded. Whose responsibility gives rise to which damage to be compensated is not a matter this Article directly addresses.
To separate restitution from damages on the basis of this distinction is not a matter of taste in choosing the name of the claim. Civil Act Article 551 places rescission and damages together, providing that "termination or rescission of a contract shall not affect a claim for damages," while Civil Act Article 393 separately sets the limit of damages, providing that "(1) Damages for non-performance of an obligation shall be limited to ordinary damages" (Civil Act Article 551; Civil Act Article 393). The two provisions complement one another but aim at different targets. If the obligation of restitution recovers the movement of performance, damages fill only so much of the detriment arising from non-performance as falls within the scope of responsibility. Once this contrast is applied, the fact that the same item is recorded on both sides does not furnish a basis for adding them together.
The strongest objection here is directed at costs that cannot be neatly divided between the items. There are items that cannot be immediately assigned to one side or the other, such as the continuing burden of financing after restitution is complete, the difference by which prices rose during the delay, or the opportunity cost of money already paid and taken away. Dividing these items takes time and expense, and there is a risk that, in the end, they will be pinned to neither side and drop out of recovery. It may also be said that narrowing the parties' freedom to assert several remedies together weakens the protection of uncertain situations. This disadvantage is not erased. Even so, adding the same item to both the restitution amount and the damage amount without any basis would allow the same loss to be recovered twice. The fact that an item is difficult to divide does not mean that it should be placed arbitrarily in one side so that the two values may be added together; it means that an item which cannot be separated should be left undetermined.
If this fact is set against the contrast of the objects of recovery, what has already been paid corresponds to the performance to be returned, and the damage arising from delay in performance corresponds to the detriment to be compensated. However, whether the damage from delay in performance overlaps with the interest on money to be returned, and whether the opportunity cost arising from the delay falls within ordinary damages, cannot be determined from this scene alone. The items to be compared against the record are the contractual performance, tender of performance, demand, declaration of intent to rescind, the object of restitution, and the heads of damage (combination and scope of contract remedies; adjudication record items). This does not mean that the record of an actual case has been gathered; years, amounts, and commencement dates absent from the scene have not been determined. Matters that cannot be adjudicated on the synthetic scene alone remain undetermined.
The conclusion this section permits is narrow. Claiming restitution and damages together is possible, but where the same item overlaps between the two entries, that value is recovered only once. What is not permitted is adding the same value, without stating the basis of the item, to both the restitution amount and the damage amount as an overlapping entry. At the same time, this section neither fixes the calculated results of the restitution amount and the damage amount, nor determines which item should be assigned to which side. Items that could not be separated for want of materials remain undetermined and do not immediately become non-recoverable.
6.9Application of the Text of the Provisions and the Holdings of Precedents
Having, up to the previous stage, decided to maintain together the rule that rescission or termination does not affect a claim for damages and the requirements of damages themselves, Plaintiff A seeks to bring the contract to an end and recover what has already been paid, while also demanding damages arising from delay in performance. What must be asked in this scene is this: when the remedies after the contract has been brought to an end are recorded together under different names, what shall distinguish the manner and scope of that recording? That is, in the place where restitution and damages stand side by side, what shall distinguish the two objects of recovery remains to be settled.
Among the texts at issue, Civil Act Article 548 provides that "where one of the parties rescinds a contract, each party shall be under an obligation to restore the other party to its original state," and then adds that "interest on money to be returned shall be added from the date on which it was received." This text prescribes, with reference to the parties—that is, the party who rescinds the contract and the other party—the act of restitution and the condition of rescission, the obligations each faces toward the other. The direction of return stated in the text is toward the party returning what was received, and interest from the date of receipt attaches to the return of money. This section deals only with the text concerning the reversal of performance that this Article designates as the object of recovery.
The link joining that text to the conclusion of this scene is that restitution and damages target different objects of recovery. Civil Act Article 393 provides that "damages for non-performance of an obligation shall be limited to ordinary damages," and makes the debtor liable for damage arising from special circumstances only where the debtor knew or could have known of those circumstances. Civil Act Article 551 declares that "termination or rescission of a contract shall not affect a claim for damages." Accordingly, what is needed is the contrast of objects of recovery—that is, the task of separating the performance to be returned from the detriment to be compensated—because the reversal of performance previously received and the make-whole of detriment arising from delay each have their own objects and limits determined, and are therefore specified by dividing them in two. This distinction does not bar the two claims from being pleaded together; its role is to divide the places so that the objects sought to be recovered do not overlap.
The strongest objection begins from the point that there are costs whose boundary between restitution and damage is unclear. Items arise that cannot readily be transferred to one side alone, such as expenses incurred in bringing the contract to an end or profits missed on account of the delay—items hard to say whether they form part of the performance to be recovered or part of the damage. In such a case, placing them in only one side may cause them to be omitted from recovery, while placing them in both sides risks the same burden being counted twice. Nor is it easy to dispel the concern that unduly narrowing the parties' freedom to assert several remedies together weakens the protection of such uncertain situations. Yet that very indistinctness cannot be a reason for abandoning the separation of the objects of recovery, and the confirmed answer is that the same item cannot be added, without basis, to both the restitution amount and the damage amount as a duplicated sum.
The point that Plaintiff A seeks to recover what has already been paid is set against the performance to be returned designated by Civil Act Article 548, and the point that Plaintiff A demands damages arising from delay in performance is set against the detriment to be compensated, for which Civil Act Article 393 sets the limit and conditions. Placing side by side the contractual performance, tender of performance, demand, declaration of intent to rescind, the object of restitution, and the heads of damage, what has been specified as the object of restitution is not counted again among the heads of damage, and what has been specified as damage is not added again to the restitution amount. However, whether there is a relationship of concurrent performance, or a refusal of performance as an exception to demand, has not been confirmed; and whether this is a delay in performance for which a demand is required while the requirements of demand and non-performance are lacking has likewise not been established on the record. Whether an unconditional demand for performance can therefore be enforced cannot be judged from this scene alone.
What this section permits is to bring the two claims together, distinguishing the performance to be returned and the damage to be compensated after the contract has been brought to an end, each in accordance with what its own text provides. What is not permitted is to place the same item on both objects of recovery side by side and recover it twice. The mere circumstance that the restitution amount and the damage amount are both recorded does not justify duplicated recovery; conversely, the mere circumstance that both remedies are asserted together does not offset either one. Costs whose boundary is indistinct may remain unconfirmed as to which side they belong to, and until that is confirmed they are left undetermined. This means that the handling of items remaining after the contrast of objects of recovery has been carried out has not been settled; it does not mean that they cannot be claimed. Next, a question remains as to the scope of restitution: if the other party has obtained a benefit, can it be recovered?
6.10Fine Distinctions Within the Stage
If the previous stage dealt with the problem of recording the same detriment repeatedly under different names of claim, what remains now is to determine what portion must again be divided and adjudicated within the combination and scope of contract remedies. In this scene, the plaintiff's claim presupposes a combination of distinct remedies: performance, rescission, and damages. Yet this combination does not mean that every item may be recorded in overlapping fashion.
The text at issue is set out first. The parties designated by this text are the party who has effected rescission or termination, and the act is that party's claiming of damages. The only condition is that the contract has been terminated or rescinded. The effect of the text is that such rescission or termination does not bar a claim for damages. This Article is not construed broadly here in order to address the other problems of this section; at this point, it is confirmed only that the ending of the contract and a claim for damages can coexist.
The conclusion of the previous stage can then be linked with this text. Restitution and damages have different objects of recovery. Civil Act Article 548 imposes on each party, at the time of rescission, an obligation of restitution, and requires interest to be added to money to be returned from the date it was received. Civil Act Article 393 provides that damages for non-performance of an obligation shall be limited to ordinary damages. The former targets the performance to be recovered; the latter targets damage within the scope of responsibility. Even where the same item overlaps between the two places, that overlap itself does not become a ground permitting duplicated recovery. Here lies the reason the two stages of judgment must be distinguished. Whether performance is to be returned and whether damage is to be compensated each require different elements; the fact that one is established cannot be taken to establish the other automatically as well.
Yet there are costs whose boundary between restitution and damage is indistinct. Where it is not clear which part of the money paid is the object of restitution and which part is damage from delay in performance, the plaintiff wishes to assert several remedies together in order to protect himself in an uncertain situation. The objection that narrowing that freedom weakens protection is strongest at this point. The author maintains this answer. Yet that maintenance does not itself mean barring the mere listing of claims. While leaving in place the uncertainty the objection points out, one need only separate the objects of recovery.
Returning to the facts of the synthetic scene, Plaintiff A seeks to bring the contract to an end and recover what has already been paid, while also demanding damages arising from delay in performance. Here the object of restitution is the contractual performance and what has already been paid accordingly, and the heads of damage are the detriment arising from delay in performance. The two consist of different items. However, this scene does not record the relationship of concurrent performance, whether a demand was necessary, or the fact of refusal of performance. The items to be compared against the record are the contractual performance, tender of performance, demand, declaration of intent to rescind, the object of restitution, and the heads of damage.
The conclusion permitted in this section is narrow. Where the respective requirements of performance, rescission, and damages are each satisfied, and the performance for restitution and the damage for compensation are specified without duplication, the two claims may be put forward together. Where this is a delay in performance for which a demand is required but the requirements of demand and non-performance are absent, or where an unconditional demand for performance cannot be enforced because of the defense of concurrent performance, it may not be done. What is unconfirmed is left unconfirmed. The detailed distinctions within the stage are confined to the conditions of cases that operate, cases that are barred, and cases that are undetermined; no new stages are created and inserted beyond these.
6.11Synthesis of Effectiveness, Blockage, and Undetermination
앞에서 해제와 손해배상이 함께 유지된다고 본 것을 전제로, 이 절은 두 회복 대상의 범위가 실제로 겹칠 때 어떻게 처리할지를 다룬다. 이 물음에 대한 답은 청구의 명칭이 아니라 회복하려는 대상이 무엇인지에 두어야 한다.
이 문제에서 확인한 문언 가운데 제551조는 "계약의 해지 또는 해제는 손해배상의 청구에 영향을 미치지 아니한다"라고 정하고 있다 (민법 제551조). 이 문언이 말하는 주체는 계약의 해지 또는 해제를 한 당사자이고, 그 행위는 계약을 끝내는 의사표시이며, 조건은 해지 또는 해제가 이루어진 경우이다. 문언의 효과는 손해배상 청구가 그로 인해 영향을 받지 않는다는 것이지, 반환과 손해의 항목이 자동으로 구분된다는 뜻은 아니다. 따라서 다른 조문이 반환 대상과 손해 범위를 각각 어떻게 다루는지 별도로 보아야 한다.
제548조 제1항은 해제 시 원상회복 의무를, 같은 조 제2항은 반환 금전에 받은 날로부터의 이자를 가하여야 한다고 정하고 (민법 제548조), 제393조 제1항은 채무불이행으로 인한 손해배상이 통상의 손해를 그 한도로 한다고 정한다 (민법 제393조). 이 두 규범이 겨냥하는 회복 대상은 다르다. 반환은 계약으로 이미 넘어간 급부를 돌려받는 것이고, 배상은 채무불이행으로 생긴 손해를 메우는 것이다. 그래서 회복 대상 대조, 곧 반환할 급부와 배상할 불이익을 분리하는 작업을 거쳐야 한다. 이 분리를 지키면 이행과 해제와 배상의 요건을 각각 충족하고 반환 급부와 배상 손해를 중복 없이 특정한 경우에 회복이 허용된다. 이행과 해제와 배상의 요건은 각각 별개로 판단되고, 특정되지 않은 항목은 허용되는 범위에 넣을 수 없다.
가장 강하게 겨냥하는 반론은 반환과 손해의 경계가 불명료한 비용이 있다는 점이다. 어떤 지출이 이미 지급한 급부의 일부인지, 아니면 이행 지연 때문에 새로 생긴 불이익인지 모호한 항목이 실제로 생긴다. 이런 항목을 회복 수단마다 따로 두지 못하게 하면, 당사자가 여러 수단을 함께 주장할 자유가 좁혀지고 불확실한 상황에서의 보호가 약해진다는 우려가 따른다. 그러나 이 불리한 부분을 지워서는 안 된다. 경계가 불명료한 비용은 그 자체로 중복 회복의 근거가 되지 않는다. 같은 항목이 두 계산에 함께 들어가는 경우에도 각 회복의 근거가 항목별로 특정되어 있지 않으면 그 합산은 허용되지 않는다. 만약 최고가 필요한 이행지체에서 최고나 미이행 요건이 없거나 동시이행 항변으로 이행 요구를 관철할 수 없는 경우라면 회복이 허용되지 않고, 동시이행 관계나 최고 예외에 해당하는 이행 거절 여부가 확인되지 않은 경우라면 결론을 확정할 수 없다.
이 사실을 앞의 조건과 대조하면, 반환 대상은 이미 지급한 것으로 특정되어 있고 손해 항목은 이행 지연으로 생긴 것으로 특정되어 있어 둘은 겹치지 않는 것으로 읽힌다. 다만 계약상 급부와 이행 제공과 최고와 해제 의사표시와 반환 대상과 손해 항목의 종류만이 정해져 있을 뿐이다. 최고가 있었는지, 동시이행 관계가 성립하는지, 상대방이 미리 이행하지 않을 의사를 표시했는지는 확인되지 않았다. 따라서 이행 요구가 무조건 관철될 수 있는지 또는 최고 예외가 적용되는지는 확정할 수 없고, 해당 부분은 확정되지 않은 채로 남는다.
이 절이 허용하는 결론은, 반환 급부와 배상 손해가 각각 특정되어 중복이 없는 경우 이행·해제·배상의 요건을 각각 충족한 범위에서 회복 수단이 열린다는 것이다. 허용하지 않는 것은 같은 항목을 두 계산에 중복해 넣으면서 청구 이름이 다르다는 이유만으로 회복을 늘리는 것과 최고와 미이행 요건이 없는 이행지체나 동시이행 항변을 넘어서 무조건 이행 요구를 관철하는 것이다. 회복 대상 대조는 그 경계를 지키는 절차이고, 경계가 확인되지 않은 항목은 확정하지 않는다.
6.12이 권의 결론과 남는 물음
앞 절이 남긴 규칙은 해제와 해지가 손해배상청구에 영향을 미치지 않는다는 것과 배상 자체의 요건을 함께 유지한다는 것이었다. 그 규칙을 전제로, 원고가 적는 청구 이름이 서로 달라 보이는 항목들을 나란히 놓아도 되는지가 이 물음이다. 반복하여 적는 것을 막는 일이 곧 청구 수단 선택의 자유를 좁히는 일로 이어질 수 있어 보이지만, 그 확대는 이 절의 범위를 벗어난다. 이 절은 두 청구의 대상이 되는 회복 대상이 실제로 다른지를 분리해서 확인하는 작업만을 다룬다.
민법 제551조는 계약의 해지 또는 해제는 손해배상의 청구에 영향을 미치지 아니한다(민법 제551조)고 정한다. 이 문언이 가리키는 주체는 해지 또는 해제를 한 당사자이고, 행위는 해지와 해제에 이르는 계약 종료의 의사표시이며, 조건은 그 의사표시가 유효하게 존재할 때 손해배상청구가 그로 인해 소멸하거나 제한되지 않는다는 것이다. 이 조문은 반환청구의 근거를 새로 만드는 것이 아니라 손해배상청구가 해제와 해지와 병존할 수 있음을 확인하는 문언이다. 여기서는 이 문언이 청구의 공존을 허용한다는 점만 설명하고, 배상 자체의 요건이나 반환의 요건까지 이 조문에서 도출하지 않는다.
반환의 근거가 되는 문언으로 민법 제548조는 당사자 일방이 계약을 해제한 때에는 각 당사자는 그 상대방에 대하여 원상회복의 의무가 있다(민법 제548조)고 하여, 반환할 급부를 대상으로 한다. 배상의 범위에 관한 민법 제393조는 채무불이행으로 인한 손해배상은 통상의 손해를 그 한도로 한다(민법 제393조)고 하여, 책임 범위의 손해를 대상으로 한다. 두 대상이 구별되기 때문에 해제와 손해배상청구의 병존이 곧 같은 항목의 이중 회복을 허용하는 근거는 되지 않는다. 회복 대상 대조란 반환할 급부와 배상할 불이익을 분리하는 작업이며, 이 대조를 거친 뒤에 양쪽에 적히는 항목이 서로 다른지를 확인한다. 같은 항목이 양쪽에 겹쳐 있다면 그것은 별도의 회복 대상이 아니라 하나의 회복 대상이 두 번 적힌 것으로 본다.
이 구별이 가장 강하게 부딪히는 지점은 반환과 손해의 경계가 불명료한 비용이다. 원고의 입장에서 반환 대상인지 손해 항목인지가 즉시 확정되지 않는 비용을 한쪽에만 두면 회복에서 누락될 수 있고, 양쪽에 모두 두어 안전하게 회복하려는 선택은 불확실한 상황에서 당사자가 여러 수단을 함께 주장할 자유를 좁히지 않으려는 가치와 맞닿는다. 이 손실과 불편을 지우지 않은 채로도, 저자의 답은 동일 항목을 근거 없이 반환액과 손해액에 중복 합산할 수는 없다는 것이다. 근거 없는 중첩은 회복 대상의 분리라는 작업 자체와 어긋나며, 청구 이름을 달리 적는 것으로 그 어긋남이 치유되지 않는다.
확인되는 사실은 원고 A가 계약을 끝내고 이미 지급한 것을 돌려받으려 하며, 이행 지연으로 생긴 손해도 요구한다는 것이다. 계약상 급부와 이행 제공과 최고와 해제 의사표시와 반환 대상과 손해 항목이 정해져 있을 뿐이다. 반환 대상인 이미 지급한 것과 손해 항목인 이행 지연으로 생긴 손해가 각각 특정되었는지, 어떤 비용이 어느 쪽에 귀속되는지는 확정되지 않는다. 동시이행 관계나 최고 예외인 이행 거절 여부도 확인되지 않았고, 미리 이행하지 않을 의사를 표시한 사실이 확인되면 최고 필요 여부를 다시 판단한다. 따라서 중첩 여부가 확정된 항목은 드러나지 않았으며, 확정되지 않은 채로 남는다.
이 절이 허용하는 결론은, 해제와 해지가 손해배상청구에 영향을 미치지 않는다는 규칙 아래에서 반환과 배상이 각자의 대상을 겨냥하므로 같은 항목을 두 회복액에 중복해 적을 수 없다는 것이다. 이 절이 허용하지 않는 결론은, 청구 이름이 다르다는 이유만으로 같은 불이익을 반복해 적을 수 있다거나, 회복 대상 대조의 결과를 확인하지 않은 채 중첩을 단정하는 것이다. 반대로 경계가 불명료한 비용이 있다는 사실만으로 중복 합산이 정당화되지는 않고, 그 비용의 귀속은 확인되는 사실에 따라 특정되어야 한다. 상대방이 이익을 얻었으면 반환받을 수 있는가?
Statutes referred to
Questions left open
- 이행이 가능한데도 해제를 허용할 이익은 무엇인가?
- 부분 이행의 효용을 반환에 어떻게 반영할 것인가?
- 해제 뒤에도 회복되지 않는 기대이익의 경계는 어디인가?