The Study On Liability For Damages By Force Majeure In Contract Law

"Force Majeure" refers to the irresistible Force of human.General speaking,is be defined as the objective situation,what is can't be foreseen,avoided or overcome. It originated in Roman Law,have been accepted by most countries now.Usually,we call these objective situations "Force Majeure".The present law on "Force Majeure" regulates that:If a contract can't be fulfilled due to Force Majeure,the obligations may be exempted in whole or in part depending on the impact of the Force Majeure. When it comes to the Specific provisions,they are differences from each other.This article briefly introduces the basic theory of Force Majeure,focus on that how to allocate the losses caused by Force Majeure between the parties in order to achieve the effects,such as fair,just.The purpose of laws is not been shelved,but rather to apply.How to consummate our present law about sharing the loss due to Force Majeure,in order to make the law running more efficiently,This is also that this article concerns.This article is divided into three parts.The first part introduces the origin,development of Force Majeure.Focus on description and analysis the losses caused by Force Majeure specific connotation.In this way,it is easy to make a qualitative about the loss caused by the event of Force Majeure.What is more,it introduces the theoretical foundation refer to how to deals with the loss of Force Majeure.Scholars have different opinion,such as the theory of "the Bearer is who is hit",the theory of "Fault liability",the theory of "Community benefits",and the theory of "Superior Risk Bearer".This article is supply the opinion of the "principle of equity",Consider that the principle of equity has an irreplaceable advantage in the balance of benefits on both parties.The second part makes a Comparison between Civil law,common law,and the international legal documents.In common law,the "frustration of contract system" encompasses the functions of Force Majeure,complying with its tradition of the case law.It is extremely harsh at sharing the loss.Also,there are many different opinions in how to determine the loss,parties tend to use the Force Majeure clause to distribute the losses.When it comes to Civil law,the comparison focus on Germany,France and Taiwan.There are great differences between Germany and France.It is mainly reflected in the rule of "Performance Impossibility" in the New Law of Obligation of Germany.In the long-term development,the rules of Force Majeure in France have some change,it becomes more mollify because of the expand explaintion and the using of Force Majeure clause.Most international legal documents about the Force Majeure are more general,in order to reconcile the different provisions between different counties.The third part makes a specific analysis to the Force Majeure regarding allocation of loss in our country,pointing out the advantages and disadvantages,and put forward a proposal about how to complete the rule of sharing the loss.All in all,the problem about sharing is very important,relates to immediate benefits between two sides.If only apply the Disclaimer Rules,what will be easy to result in unfairness.So the issue of sharing loss has a very important significance in reality.How to get a reasonable allocation of losses in parties,in order to get the purpose of evading risk and encouraging trades.The Force Majeure has played an important role therein.