The Research On Original Impossibility Of Contract Performance

Impossibility of original performance, a law term in contrast to impossibility of subsequent performance, is one of impossibility of performance when a contract has been signed. Inventius Celsus, a outstanding jurist in Rome, has proposed a law principle, impossibilium nulla est obligatio, in the 2ed century, which has been inherited in the civil law of mainland legal system. Similarly, it were prescribed in "the French civil law Code ", "the Austrian civil law Code ", "Swiss Debt Law", "the Italian civil law Code ", our country Taiwan civil law code and so on. The German scholars have epitomized this principle. It had been prescribed: The contract is inefficient when the contract cannot pay for, in the 306th term of "German Code civil" before revising, which is the same as UK-US law about mistake stipulation.The stipulation, the contract is inefficient when the contract is impossible in original performance, always fully suffered scholars' criticisms in Germany, Japan and so on. German National debt Law Modernization, becaming effective on January 1, 2002, restructures the system about performance barrier law, separates the old stipulation about impossibility of original performance, introduces "the duty violated" to take the unite constitution, fades out the core status about "impossibility of performance", stipulates contract isn't affected in impossibility of original performance that is only one kind of "the duty violated". International agreement stipulations are similar to "German National debt Law Modernization".In our country, civil law has used "not to perform or the performing contract does not conform to the agreement" to unite constitution element in performance barrier law, and hasn't termed about impossibility of original performance and so on, and hasn't formed the stipulation that the contract is inefficient when the contract cannot pay for. But with the significant misunderstanding, the cheat, the potency waited the status are regulated in impossibility of original performance. The author has criticized two viewpoints in our country academe--- "following impossibility of original performance" and "rejecting impossibility of initial performance", has analyzed the insufficiency of stipulation about impossibility of original performance situation. The author has figured out that traditional impossibility of original performance stipulation should be gotten rid of because of all sorts of malpractices, and it should be regulated newly because of its unique status. New impossibility of original performance, in our country, should be perfected with taking the contract as the foundation, taking "not to perform or the performing contract does not conform to the agreement" as the relief admission passage, regarding the relief matter and the mistake compensation as the supplement.