On The Effectiveness Of Contract Affected By Initial Impossibility Of Performance

In the light of the trend of law development,every country no longer distinguishes the types of initial impossibility and later impossibility,objective impossibility and subjective impossibility in the legislation.However,there are a lot of cases of initial impossibility of performance in practice.And there exist different recognitions about contract effectiveness of initial impossibility in theoretical circles of our country.So the author does some research,expecting that it can be helpful to achieve common understanding.The author starts with the analysis of initial impossibility of performance,and reviews the traditional theory of contract of "initial impossibility of performance is void".Following the trends of modern legislation,it discusses the reasonableness and reality of the solution of contract of "initial impossibility of performance is valid".At last with the relevant provisions of "Contract Law",the author makes recommendations.It considers that the contract of initial impossibility of performance should be treated differently according to different circumstances.In principle,the contract of initial impossibility of performance is valid.Exceptions are that the contract of initial impossibility of performance caused by fraud, significant misunderstanding can be changed,revoked or void.This article consists of four chapters besides the preface and conclusion.The first chapter is the summarize of initial impossibility of performance.This chapter firstly analyzes the distinction between initial impossibility and later impossibility,objective impossibility and subjective impossibility,and then explains the meaning of existence of initial impossibility and the judging rules.The second chapter is about the traditional theory contract effectiveness of initial impossibility of performance.This chapter firstly researches on the law origin of "contract of initial impossibility of performance is void" and lists the traditional,then analyses the reasons why the traditional theory of "contract of initial impossibility of performance is void" is being badly criticized.The third chapter is on the modern legislation of contract effectiveness of initial impossibility of performance.At first this chapter proposes that the modern legislations abandon the traditional legislations,adopting the solution of "contract of initial impossibility of performance is valid" and analyzes deeply the rationality of the solution.And then it lists the modern legislative examples of "contract of initial impossibility of performance is valid",expecting that it can provide some references to the improvement of the legislation of our country.The fourth chapter is about the position of contract effectiveness of initial impossibility of performance in Chinese legislation,and proposes the suggestions to improve the legislation.This chapter firstly analyzes the position of initial impossibility of performance in Chinese legislation and makes sure that contract of initial impossibility of performance is valid in principle.Secondly,in Chinese current legislation,the contract effectiveness of initial impossibility of performance is treated differently.At last it analyses the deficiency of the provisions of initial impossibility of performance in Chinese legislation,and makes recommendations.