Force Majeure Exemption Mechanism

Force Majeure is the common defendant condition of exempting from the liability for breach of contracts or tort, so it is an important institution in the Contract Law and the Tort Law. But so far, there are not enough research for it, and the existed is only studied on the layer of the force Majeure, it is not developed to the exempted from liability for the force Majeure. After analyzing the existed the institution of the exempted from liability , this paper is sure for its reasonable components ,but at the same time , points out its problems , and rebuilds it in order to improve the institution of the exempted from liability for the sake of helping the judicial practice.This paper is organized as follows:Section 1 is the source of the force Majeure. This rule was appeared existed firstly in Roman Law, then the Continental Law followed it, and English-American Law adopted it, the International Law enacted it, too. Of course, there was this rule early in China. Then, we can know that, the force Majeure is ruled by one of the conditions for the exempted from liability, however, it not only is ruled by one of the conditions for the exempted from liability, but also is enacted by one of the conditions for the rescission.Section 2 is the rebuilt of the rule. There are reasonable components , but at the same time , there are many problems in the existing rules , for example, the chaos as one of the conditions for the exempted from liability and one of the conditions for the rescission simultaneously , there are not the rules of the unexempted from liability , etc . So, the author rebuilds the rule: the force Majeure --liability for breach of contracts--exempted from liability--the legal results. And the author will describe them separately.Section 3 is the conceptional analyzation of the force Majeure. After valuing the three theories of the force Majeure and analyzing its constitutive requirements, the author advises, only "three can't" existing simultaneously consists of the forceMajeure, and the force Majeure and the exempted from liability of the force Majeure is different, the second not only needs the first, but also needs the causal connection between the force Majeure and its damages. Section 4 is the basis of the theory for exempted from liability. After analyzing the connection between the exempted from liability and the strict liability, the author thinks that the exempted from liability is not only the applications of the strict liability, but also its exception. Then the author analyzes that whether the liability for fault,the theory ofcausal connection,"whoever can't be exempt for accident"--"be taken by hit","theloss is bigger who owns the force Majeure" can be the basis of the theory for exempted from liability . At the end, in the author's opinion, the basis of the theory for exempted from liability is the principle of fairness.Section 5 is the exempt legal results. The exempt is only the liability for breach of contracts for the force Majeure, how to make sure the other loss and the force of the contract, the author describes it from delaying performance,terminating performance,performance by percentage.