The Transition Of German Law Of Impossibility Of Erformance And Its Entlightenment

This thesis dedicated to make a research about the transition of the impossibility of performance in the german law of obligations from the perspective of historical development. The author has divided the development of impossibility of performance in german law into two periods. One is the impossibility of performance in the 1900 german civil law code, and the other is the impossibility of performance after the German Act to Modernize the Law of Obligations. When the author analyzes the regulations regarding to this legal institution in various periods, starts er mainly from the essential elements that constitute the impossibility of performance, and makes a research about the core questions that the legislator has to take into consideration. Hopefully it will fully reveal the scene of this legal institution and its transition in the german civil law. These essential elements are: 1)the validity of the contract by impossibility of performance ; 2)the fate of the original duty to performance ; 3)the secondary duty to performance ; 3)the duty to counter-performance by mutual-contract ; 4)the right to withdrawal.After a short comment to the german reform of the impossibility of performance, the author combines the german legal institution of impossibility of performance with the related regulations in our legal system, analyzes the useful enlightenments of the transition of this legal institution that may have for the codification of our civil law in the future.The author thinks that, from the macroscopic point of view, our future civil law code should adopt the german"method of modificatory legal effect", that is to say, we should firstly make"nonperformance"or"the infringement of duty"as the unified element of the obstacles of performance, downgrade the impossibility of performance from its original central place to a specific form of"nonperformance"or"the infringement of duty". But in view of the specialty of the legal effect of impossibility of performance, we ought to in the general part of the law of obligations make specific provisions for the impossibility of performance. Form the microscopic points of view, the transition of theimpossibility of performance can us also a series of enlightenments provide. First of all, we should abandon the traditional practice that interpreting the"possibility of object"as the fourth requirement of the legal transaction, and in the civil law code make clear that a contract is not prevented form being effective by impossibility of performance, in order to put an end to useless debate. Secondly, we should bring the relative impossibility, also the factual impossibility and the ethical impossibility, into the scope of impossibility of performance, and enrich the content of impossibility of performance. Lastly, we should make specific provisions about"the interference with the basis of the transaction", and make good coordination with the institution of impossibility of performance, because that"the interference with the basis of the transaction"and"impossibility of performance"are the logical limit of the creditor's right of performance in nature.The author is convinced that the german civil law code belongs to one of the greatest codes in the history of human being. The correctness of almost each legal institution has gone through many proofs. The German Act to Modernize the Law of Obligations in 2002 didn't abolish the very controversial impossibility of performance, hat profound reasons. Now some scholars want to use the"deceit"and"major misconceptions"to solve the problem of impossibility of performance, the others claim that the impossibility is not a form of obstacle of performance, but only a factual Status. These views try to weaken and disavow the unique function of impossibility of performance, but what they real want is to abolish this legal institution. Fortunately, the future chinese civil law code will give us a new chance to redesign the institution of impossibility of performance, and the german law of impossibility of performance can be used for reference.