Prudential Appliance Of Rule Of Hardship In Judicial Interpretation Of Our Contract Law

The rule of hardship refers that modification and rescission should be allowed to balance the mutual interests of the parties to a contract while the conditions or foundations a contract depends on has changed since the unforeseeable circumstance arising after the conclusion but prior to the performance of a contract.Due to its unique value, the rule of hardship is to adjust socioeconomic relation,share social risks,balance interests and realize substantive fairness and justice.As to the legislative practice,the dispute about the necessity of the establishment of rule of hardship is not on and off.The essay argues the establishment of rule of hardship from the angle of economy development and linkage with the world. Our contract law stipulated the rule in judicial interpretation in 2009.Because of the rationality from both the theoretical and practical angles,the rule of hardship is formulated.But this also has flaws.The rule of hardship is an exception to general rules of contract law.It is difficult to distinguish hardship from force majeure and commercial risks.Some judges and the parties might abuse the rule.The last,the rule of hardship is not perfect,and the practical experience is not enough in our country. As a result,we must apply the rule prudently. Specifically,it is important to face up to its shortcomings, clear and definite the applicable qualification and act up to the applicable procedure strictly to maximize the benefits.