Study Of Force Majeure

In the judicial practice of contract law, especially of international trading contract law or international transportation contract law, it is a common occourance that much dispute arises between parties for a whole contract's not being, or not well being performed due to force majeure.This kind of cases, I think, happens for not a single reasons, besides the unclear definition, the vague criterion, the unprofound understanding and incorrect applications are also among the reasons.In this dissertation, I will do some study on force majeure in comparative and positive analytical way, which includes the definition and components; matters to be considered in making judgement; the principle and mode in distributing the risk; force majeure clauses in contracts.1,Definition of force majeure. It is a primary task to definite force majeure correctly. For a long time, we have a poor definition about it both in theory and in practice, and even mix it with some similar concepts, such as contingency, state alternation and so on.Though our general principles of the civil law has a more clear definition, some more modification is necessary. Hereby,I bring forward a new concept: force majaure events are a kind of accidents in which it is unfair to the suffering party if asked to continue to fulfil the contract, and that is also against the principle of good faith.2,Judgement about the force majeure cases. It is difficult to judge whether a case, in which a contract is not well performed, is a force majeure event or not. we should not make a judgement just by the definition,many interrelated factors shall also be considered. More attention, in my opinion, should be paid to the subjective and objective components and their relations.3,Principle of risk-distribution .In a long run, it is thought that the suffering party shall bear the results. However, I am afraid that it is against the principle of fairness and prefer a new mode, the damage due to force majeure shall be paid by both sides in a certain proportion(5to5 or 4to6).4,Force majeure clauses in the contract.Both the parties should realise that legitimate clauses on force majeure in contracts will help to reduce the risks when performing it. Besides,they should also be well familiar with the procedure of dealing with such cases.Qian Xiaoling(Civil and commercial law) Directed by Professor Shen Yujun...