Constitutive Requirements Of Clausula Rebus Sic Stantibus

The Principle clausula rebus sic stantibus is too abstract to be understood. There is noobjective standard for its appliance. This thesis aims to explain the constitutiverequirements of the principle in order to make it easier to be understood and moreobjective in judicial practice.According to the judicial interpretation and most scholars, there are five constitutiverequirements for clausula rebus sic stantibus: Firstly, change of circumstances musthave occurred; secondly, the change of circumstances occurred after the conclusionand before the fulfillment of the contract; thirdly, the change of circumstances shallnot be attributable to the parties of the contract; fourthly, the change of circumstancesis unforeseeable by the conclusion of the contract; fifthly, it would be obviouslyunfair for one party to perform the original contract.Part one of the thesis explains the first requirement: Change of circumstances musthave occurred. In this part, that what kinds of change of circumstances may lead tothe appliance of clausula rebus sic stantibus will be discussed. The circumstances hereinclude only objective circumstances. According to the judicial interpretation, changeof circumstances shall not be force majeure or commercial risk. Is this reasonable?Part two of the thesis explains another three requirements: the change of circumstances shall occur after the conclusion and before the fulfillment of thecontract; the change of circumstances shall not be attributable to the parties of thecontract; change of circumstances shall be unforeseeable by conclusion of the contract.If the change of circumstances occurred before the conclusion of the contract, itmeans the parties know the changes and are willing to assume the risk. The change ofcircumstances must occur before fulfillment of the contract, because the contractvanishes with the fulfillment of it, and the change of circumstances after will notinfluence the contract any more. If change of circumstances is attributable to theparties, they shall assume the risk or bear the liability for breach of the contract andclausula rebus sic stantibus shall not be applied. If the parties of the contract haveforeseen by the time of the conclusion of the contract the change of circumstances, itmeans that they are willing to bear the risk of the change of circumstances, so clausularebus sic stantibus shall not be applied. As for the standard of foreseeability, there aretwo different views. One holds that the standard of foreseeable shall be subjective,namely according to the actual situation of the party adversely affected. The otherholds that the standard shall be objective, namely, from the point of a reasonable thirdparty.Part three of the thesis explains the last requirement: It is obviously unfair for oneparty to perform the original contract. There is no single objective standard for thedecision of obviously unfair. The decision of it is mainly based on subjectivejudgment of judge. This part explains three different type of cases on clausula rebussic stantibus. The typification makes the judgment of obviously unfair more objective.