A Comparative Study Of The Principle Of Change Of Circumstances

The principle of pacta sunt servanda has been well-established either in continental legal system and common legal system or in the international modal laws concerning contract, as a result of a well-known fact that market economy is economy of contract. American jurists even emphasized: "Justice is even by its nature to preserve the exercise of contract." British jurists think that civil law should be passive. Neither the right of people to contract could be restricted for judicial facility by law, nor the interventions could be putted up between parties. Only when one party is in breach of contract or out of duty of performance, it is necessary to help the other party.It seems that there is no room for the clausula rebus sic stantibus to remain. However, the principle of pacta sunt sernda has been challenged since the two world wars and the international economic crisis. Since the value of law lies in the fact that it is not only to preserve the credit and freedom of contract but also to pursue fairness, the scholars of continental legal system and common legal system put forward the principles of clausula rebus sic stantibus and the frustration of contract respectively. From both theoretical and practical aspects, Pacta sunt servanda should be subject to two exceptions: clausula rebus sic stantibus and frustration of contract. That is a discreet choice to balance the credit and fainess.This article compareatively study the theory of clausula rebus sic stantibus from three aspects. First, the theotical basis of clausula rebus sic stantibus in continental legal system has been analyzed, especially in German and French. Also, that of the frustration of contract in common law system has been. At the same time, sine qua non of clausula rebus sic stantibus for our country is conceived. Second, the requisite components of clausula rebus sic stantibus in continental legal system have been investigated. And the requisite components of frustration of contract have done so. The requisite components of clausula rebus sic stantibus for our country are raised. At last, the legal effect is...