Research On The Impossibility Of Performance

Impossibility of performance is mainly a concept of the contract law in Civil Law, and is generally regulated in performance obstacles in the civil laws of many countries. Even though impossibility of performance originates from Roman law, in which it is only a embryonic form, it's perfected and developed in very large extent only when the Germany Civil Code was constituted, and is clearly made a provision in Germany Civil Code. Henceforth, other Civil Law countries and regions, especially which is deeply affected by Germany law such as Switzerland,Japan,Taiwan China and so forth, had carried out thorough,subtle research, and made related provisions in legislation. In modern time, the defects of the impossibility of performance emerged gradually, and the Civil Law countries unceasingly attempted to whose reparation and perfection. Meanwhile, the "breach of contracts" system in Common Law is introduced into the legislation of Civil Law countries, along with the mutual infiltration and influence between two law families. The new Germany obligation law enacted in 2002 had drawn lessons from U.N.Convention of Contracts for the International Sale of Goods, substituted the obligation nonfulfilment system with unified "breach of contracts" . It had completely reconstructed the obligation nonfulfilment system, and had revised all round to impossibility of performance.Thereupon, the Civil Law scholars have more arguments on, how the impossibility of performance should be perfected, even whether or not it has the independent existence value. This article, beginning from the concept of impossibility, explores its boundary, its classification, its historical development and its relationship with "breach of contracts", and carries on the research into the validity and the legal consequence of the contract when the impossibility happens, then propose my shallow views to consummate the impossibility in the civil law of our country. This article is divided four parts to research the impossibility. Part I is introduction of impossibility of performance, and it's the theoretical precondition of the research. Had only exactly apprehended the connotation, extension, classification and its historical development of the impossibility, we can have a deeper understanding on it, and know it's significant position and value in the system of obligation obstacles in the contract law. Meanwhile, in respect that some scholars claim the impossibility, different from the form of "breach of contracts" containing juristical value judges, is only a objective state, and have no necessity to make clear stipulation in the contract law of our country. Therefore, this part also has carried out investigation and research on the relation between the impossibility and "breach of contracts", and pointed out that the impossibility not only is a objective state violating contract liability but has very strong independent character being able to distinguish from other forms of "breach of contracts". Consequently, it has its own theoretical basis and independent value as a form of "breach of contracts".Part II is the validity of the contract under the condition of impossibility. This part firstly investigates the legislations,cases and theory regarding as the validity of the contract under the condition of impossibility in Civil Law; then probes into the regulation method with regard to the impossibility in Common Law. By the fact that the above-mentioned study of comparative law, this article holds, the contract should remain effective under impossibility condition, by reasons of respecting the parties' purpose and protecting the parties especially creditor's benefit, as well as safeguarding business safety and stabilizing business order. However, if the impossibility can not impute to any party the party should be endew with the right of relieve the contract and decide whether or not maintain the validity of the contract by themselves, in order to assign business risks rationally and balance the interests of the parties. Besides, the traditional classification of impossibility is excessively complicated resulting in the difficulty in applying to practice, therefore, the legislation should cancel the various classifications, and make a unified regulation.Part III is the consequence of the contract under the condition of impossibility. Generally speaking, just like other forms of "breach of contracts", the debtor will be directly concluded to have the fault when impossibility happens, and will take the breaching responsibility such as compulsory performance,compensate for loss and so forth, unless the debtor can prove he has no fault. Only when the impossibility cannot impute to both parties, the party is allowed to relieve the contract. Besides, this part introduces the system of the replacement claim of compensation in the Germany obligation law, namely, when the debtor has the claim for the substitute of the subject-matter or for third person's compensation because of the same reason impossibility happens, the creditor can request the debtor deliver the subject-matter or attorn the claim in order to protect his interest much better.Part IV is the perfection of impossibility in the civil law of our country. Firstly this part explores the current legislation theoretical condition regarding as impossibility in the civil law of our country, and points out the defects regulating the impossibility in our civil law and the significance introducing the impossibility system. Then, the article, taking relevant stipulates of our contract law as fundamental framework, and taking the relevant contents of the impossibility as complement, attempts to perfect the impossibility system of our civil law.