<17> 부동산 거래에서 사정변경을 이유로 계약을 해제할 수 있을까?

Hanbyol Law LLC explains that a mere fluctuation in market prices is not sufficient to rescind a real estate contract. The Supreme Court applies the doctrine of rescission based on a change of circumstances strictly, considering factors such as a substantial change in the underlying circumstances of the contract, foreseeability, allocation of risk, whether the contractual purpose has become impossible to achieve, and whether a serious imbalance has arisen. Accordingly, rescission on this basis is highly exceptional in practice.

Hanbyol recommends first checking whether the contract contains any special provisions (for example, a right to rescind if financing cannot be obtained). The lawyer also suggests considering other legal grounds apart from a change of circumstances, such as the seller’s liability for defects (Article 580 of the Civil Act), rescission for mistake, fraud, or duress (Articles 109 and 110), and rescission for delay in performance (including Article 544). Other practical alternatives include rescission by forfeiting the deposit or returning twice the deposit (Article 565), resolving the matter through negotiation or mutual agreement, and reducing the penalty (Article 398(2)).

In particular, Hanbyol explains that regulatory restrictions on loans, interest rate hikes, changes to tax laws or real estate policies, and personal financial circumstances are generally foreseeable risks, making rescission difficult to obtain. However, the doctrine of changed circumstances may apply where, for example, loan disbursement was expressly made a condition of the contract or a contractual condition is clearly defined, as in the case of a failure to obtain permits or approvals. The lawyer advises that the best way to prepare is to clearly address such risks in special provisions before entering into the contract.