The Comparative Research On The Force Majeure Of Contract Law

Force majeure is the general defendant condition of exempting from the liabilityfor breach of contracts or tort,so it is an important system in contract law and tort law.However the researches on Force Majure in China are lacking and exsited fewresearches are almost focusing on cognizance area, while the further one--exemptionis missing.This essay bases on the force majeure institution of contract law, and analyzesthis institutuion in France, Germany and in Anglo-American law system countriesmainly by comparative approach. Then the essay evaluates the existed institution offorce majeure in our country’s contract law, affirming its rational components whilepointing out some deficiencies, and proposing a few improving measures. The essayis organized as following four parts:The first part introduces the source, function and development of the forceMajeure.This rule institution appeared firstly in Roman law, then the Continental Lawfollowed it, and Anglo-American which didn’t admit this institution before finallyadopted it.The second part reviews the force majeure institution in some countries. Firstly,introducing the institution of force majeure in French law,and analyzes itscharacteristics and applicable scope expansion; Secondly, introducing theimpossibility of performance of Germany, analyzing its types and behavior theory.Then the essay points out the differences between the force majeure and the principleof changed circumstances.Finally,introducing the Anglo-American frustration ofcontract system, and its type, legal consequences and relationship with Force Majeure.The third part introduces the force majeure institution in Chinese Contract Law based on comparative analysis method.Firstly, analyzing the force majeure institutionin china, then make evaluation, affirming its rational components while pointing outsome deficiencies as follows:(1)The criterion of Force Majeure is too strict;(2)Theexceptions of Force Majeure are unspecified;(3) The situation that whether acts ofState belong to the Force Majeure is not explicitly stated by legislation;(4) Thecurrent Loss Allocate Rules of force Majeure is unfair.Considering the deficiencies of our Force Majeure institution,the fourth part putsforward some improving measures, including followings:(1) Reducing the criterion ofForce Majeure appropriately;(2) Stating clearly the exemption and exceptions ofForce Majeure in legislation;(3)Stating in legislation that the national acts belong tothe scope of Force Majeure in certain circumstances;(4)Establishing new LossAllocate Rule of Force Majeure on the basis of fairness.