A Research On Clausula Rebus Sic Stantibus

Pacta sunt servanda is one of the basic principias in contract law. However, where the change of circumstances that are treated as the foundation of the contract results in a performance being hardship or meaningless, and the change occurs after the formation of the contract , and it is beyond control and it could not reasonably has been taken into account at the time of the formation of the contract, the insistence on pacta sunt servanda would be too rigid and unfair. Clausula rebus sic stantibus is developing gradually to mitigate the rigor of the insistence on pacta sunt servanda and has been established in most countries and regions nowadays.The change of circumstances is inevitable in our country. However, there is no general provision about clausula rebus sic stantibus in our current law. There is much matter in our judicial practice and the research on clausula rebus sic stantibus need more efforts. After comparing legislation in other countries and analyzing legislation, practice and the study on clausula rebus sic stantibus in our country, the article provides its legislative proposal about clausula rebus sic stantibus to benefit the development of the doctrine and to perfect the Contract Law of China.Apart from the Introduction and the conclution, the article consists of four chapters as set forth follow:Chapterâ… introduces meanings, evolution and foundation of clausula rebus sic stantibus. After reviewing the history of the evolution, it demonstrates the inevitability and rationality of clausula rebus sic stantibus by analyzing the foundation of social economy and jurisprudence.Chapterâ…¡is designed to research clausula rebus sic stantibus by comparative method. Firstly, it analyzes and compares the rational about clausula rebus sic stantibus in civil law systems and common law systems and draws the conclution that the doctrine is a exception of pacta sunt servanda for fairness and justice. Secondly, it analyzes and compares such doctrines as Wegfall der Gesch?ftsgrundlage, clausula rebus sic stantibus, frustration of contract and hardship in various legal systems. It points out strongpoints and limits of each doctrine to establish the base of use for reference in legislation.Chapterâ…¢studies status in quo, need and feasibility of clausula rebus sic stantibus in our country. It analyzes primarily such questions that the doctrines about force majeure and unconscionability could not substitute clausula rebus sic stantibus, there are limits in our actual judicial practice and it could be differentiated from change of circumstances to risk in business.Chapterâ…£is devoted to establish clausula rebus sic stantibus in the Contract Law of China. It pionts out that fairness principia should be the rational of clausula rebus sic stantibus. It discusses application conditions and effects of the doctrine in detail. It argues weightily that renegotiation obligations should be established and right of modification in contract is one of gestaltungsrecht. At last, it designs articles of clausula rebus sic stantibus for the Contract Law of China .