Performance Of The Contract Situation Change The System A Comparative Study

Clausula rebus sic stantibus originated from continental legal system. It becomes fundamental principle of civil law, even international commercial law. Generally speaking, this principle means that contract existing conditions and environment are changed or gone for some reasons that are not due to the parties after the legal contract establishment and before its complement. If keeping perform the legal contract, the performance will be very difficult or unnecessary. One party can require the other party to re-negotiate. If the re-negotiation can't be done, they can go to court or arbitration agencies to change or cancel the contract. With the development of this principle, Continental legal system and Anglo-American legal system, even in the field of international law are respectively formed their own theories and systems. After a long time of dispute, this principle brings in our contract law.This article tries to use the method of compare identification, and analysis some related cases. On the basis of the definition of the principle of change of circumstances, and research of its history and related theories and systems, we can clear the nature of this principle. At last, considering the situation of this principle in our country, we discuss the structure of the principle of change of circumstances. This article is divided into four parts:Part I:Introduction the principle of change of circumstances. First, author would definite the concepts of "rebus sic stantibus" and "clause rebus sic stantibus" and introduce their history. Then respectively introduce the development of the principle of change of circumstances in continental legal system and Anglo-American legal system. In continental legal system, author takes example of German and France to introduce the development and related theories of the principle of change of circumstances in both countries. In Anglo-American legal system, there is contract frustration institute. Author will give differences between English law and American law.Part II:The development of the principle of change of circumstances in the field of international law. This principle first appears in Vienna Convention on The Law of Treaties. Basis on the experiences of continental legal system and Anglo-Amercian legal system, the Principle of International Commercial Comments forms the Hardship Clause. However, there are no related clauses exist in CISG. Author will give reason about this question. Part III:Comparison of the systems that are related the principle of change of circumstances. Basis on Wegfall der Geschaftsgrundlage in German law,the frustration of contract of Anglo-Amercian legal system and Hardship Clause of the Principle of International Commercial Comments, author mainly compares the range of application and the influence of application between the different systems that are related the principle of change of circumstances.Part IV: The situation of the principle of change of circumstances in China and establish related system. According to the time of Contract Law of People's Republic of China, we trace the pace of this principle in the legislation. Then give some cases to learn its situation in the justice practice. When we have overall recognition of this principle, author will constitute the system of change of circumstances. In aspect of the range of application, we should learn differences between this principle and force majeure,gross misunderstanding and business ventures. In aspect of the standard of application, author applies cost method of economic analysis and ordinary people standard. In aspect of the influence of application, we mainly analyze the relationship between change contract and terminate contract. In the aspect of the procedure of application, author advises set a precondition that both parties should negotiate first and agree with the Notify that give by the Supreme People's Court.