On The Principle Of Changing The Situation In Contract Law

Rebus sic stantibus is a legal concept with a long history. It has been recognized worldwidenowadays, including China. The China Supreme Court of People recognized it by way of generaljudicial interpretation. It is nesessary to examine rebus sic stantibus wholly and clearly at acomparative view. Through this paper，a primary analysis on how to understand the relationshipbetween rebus sic stantibus and other related existing norms and how to confine the application ofrebus sic stantibus will be made.This article is divided into four chapters except the preface and conclusion.The first chapter examines the historical evolution of rebus sic stantibus. In the end of thischapter, the author made a personal observation after a prudent thinking.The second chapter examines rebus sic stantibus of civil law, particularly focusing on the Germandoctrine of Wegfall der Gesch ftsgrundlage and the Frence’s situation. All major advanced civil lawcountries, except France, recognize this principle in legislation or cases.The theoretical basis of rebussic stantibus in civil law are two: one is the basis of the legal act in Germany and the other is the theoryof unpredictablity in France. Through the examination, the article finds the influence of judicialprecedent and theory on rebus sic stantibus and the method to integrate this principle into the exsistinglegal system. The civil law system provides a reference for us in applying the principle.The third chapter examines a similar concept in common law countries, that is the principles ofcontract frustration. The principle of rebus sic stantibus is a term used by civil law, while contractfrustation is a similar concept in common law. There are various theories supporting contractfrustration, among which the theory of “radical change in obligation” prevails.According to this theory, the frustration occurs, when the law recognizes that a contractualobligation has become incapable of being performed without default of either party, because thecircumstances in which performance is called for is radically different from what is stated or implied inthe contract. Essencially, what lies in the two principles is a term called authorization. When asupervening event happens, the law authorizes judges to intervene the contractual relationshipbetween both. In conclusion, the contract frustration in common law countries covers a widerrange including the theory of changed circumstances and irresistible power which are stuplated indifferent parts of civil laws. In common law system, when the parties can not be blamed, thefrustration theory can be applied. This act of pragatism is effective in individual cases but can notbe copied in our country.The last part analyses the doctrine of changes of circumstances in our countries and illustrates the 26th item of Contract Law(2) on the basis of previous study. The doctrine and the exsisting legal normslike irresistible power and bussines risk will be clarified. The reasons, conditions and procedures willbe studied for a better use of this principle.