Study On The Impossibility Of Performance

Society is the best soil to cultivate and nurture the law continued to mature and perfect, the system of impossibility is very important at the time of birth, and appears shortcomings in the judicial practice later. Theorists rethink and reconstruct the system. The paper discusses the system based on it. Firstly, this paper outlines the basic theory of system impossibility and finds shortcomings of impossibility, and accesses the system. The concept about the system of traditional impossibility is used in the Civil law area. The doctrine goes back to Roman times. Traditionally, if impossibility occurs, contracts could be implemented except some things not being delivered in the religious sphere. "The German Civil Code" which was drafted in 1896 expanded the scope of impossibility, that is, the situations that objects damage or loss, and act can not be done are impossibility. The codes stipulated impossibility decided the contract's effectiveness. Early, contract's effectiveness affected performance of the contracts, damaged the interests of creditors, and produced bad consequences of trade, the stipulation is not suited to the development of market economy and social. Studying by scholars, impossibility is typed four types: subjective impossibility and objective impossibility; pre-existing impossibility and subsequent impossibility, temporarily impossibility and permanent impossibility, part impossibility and entire impossibility, front two impossibilities are typed four new impossibilities, that is, pre-existing subjective impossibility and pre-existing objective impossibility, subsequent subjective impossibility and subsequent objective impossibility. They have different affects to effect of contract, in generally, the contract of pre-existing objective impossibility is invalid, and other contracts are valid. Typological research of impossibility plays an important role for impossibility becoming core in obstacles system of impossibility. Typological research promotes the further development of the impossibility system, and is respected by many legislators and scholars. Even so, brilliant achievements are not cover up its bad effects, and not solute the shortcomings of Impossibility. The point of dividing into pre-existing impossibility and subsequent impossibility is uncertain. The standard of distinction between subjective and objective has no conclusion either. Similar cases have different results according to impossibility, harming justice seriousness and impartiality. In additional, impossibility and delay constitute the implementation obstacles, not adjusting contracts which are not fulfilled in all the conditions, not meeting the development needs of social. So in 1902 Germany, Herman Staub established the doctrine"Violates the creditor's rights positively". The doctrine impacts greatly the legal status of the impossibility system, and proves that there are significant loopholes in the "German Civil Code" acknowledging the core of impossibility in performance barrier system. Meanwhile, The doctrine, impossibility and delay consist of triassic system on the continental system.Secondly, the paper discusses the merits which impossibility is in common law and international uniform law. In common law countries, although it is not stipulated clearly in the code. But impossibility is considered as fact state. When impossibility occurs, impossibility is not on the base whether debtor is relieved but considering whether the debtor or both parties have mistakes in subjective, or whether the purpose of the contract is empty, or whether the impossibility state meets the silent provisions. It determines whether the debtor is exemption, we could achieve the same legal consequences with civil law In Uniform law of international or regional documents, the method of legal effect is used to construct the system of performance obstacles, and documents use obligations against, non-performance, contract violation, and obligations violation as sum concepts which lead the system of performance obstacles. The famous "unity of the sale the United Nations Law", "Principles of International Commercial Contracts" and "the principles of European Contract Law" and other documents are also to take such a system. Because of need of development trend of impossibility in the future, in 2002"modern German Debt Law" is re-positioned impossibility. It is no longer living in the core of system, It starts to transform fact effect way to legal effect way. "Contract Law" of china 107, 110, 117, 94 Provisions are also legal effect way. Impossibility as a fact state does not determinate directly effect of impossibility, but it is clear that impossibility occurs whether the litigant undertakes responsibility and undertakes which responsibility.Finally, the paper discusses the problem that impossibility is relocated in the framework of existing law. More importantly, the legal effect of the traditional system of impossibility could be entirely achieved by risk allocation. The contract is confirmed invalid by the statutory exemptions of force majeure; parties have the rights of negotiate by using the change of circumstances principle. The parties decide whether contract is valid and continue to fulfill. It respects the litigant meaning expression. Of course, the impossibility is exist as exempting from both parties as undertaking responsible at this time, the litigant may use substitution right to solute obstacles problem in the process of fulfilling the contract, or relieve the contract, .the state fact of impossibility can be determined according to legal consequences which contract is relieved . This both may achieve in maximum limit in maintains the contract to abide by the principle and may avoid debtor's responsibility through the exception principle. It is true to realizes law eternal pursuit of fairness and justice.