On Sale Contract Circumstances Change Application Of The Principle Of Real Estate

The doctrine of change of circumstances is crucial in modern civil law system because of itsembodiment of judicial fairness. Under the doctrine, the disadvantaged party may petition to thecourt for relief under certain circumstances. The Interpretation II of the Supreme Court of SeveralIssues Concerning the Application for the Contract Law of the PRC introduces the concept of＂change of circumstances＂in article26, however, it has not clearly set out the applicable situations.The extent of change required to trigger relief remains uncertain and may lead to abuse of judicialdiscretion.In recent years, there is an increasing number of commercial housing pre-selling cases wherethe doctrine is applicable, especially after the State Council issued a series of regulations of thereal estate market in2009.In light of the above-mentioned situation, the paper analyzes predicaments and loopholes inthe application of the doctrine of change of circumstances, hoping to offer some usefulsuggestions to improve its legislation and judicature. The paper consists of four chapters. Chapterone is an introduction of the theoretical basis of the doctrine. Chapter two presents the origin anddevelopment of the doctrine and analyzes its legislative state quo both abroad and at home, pavingthe way for introduction of its imperfections. Chapter three first introduces the concept andfeatures of commercial housing pre-selling contracts. Then it expounds the definitions of andcomparisons among change of circumstances, force majeure, commercial risks, and obvious unjust,followed by an analysis of legal effects of the doctrine. Chapter four elaborates on the legislativeand judicial state quo of the doctrine and predicaments in its application in China. Then the paperwinds up by putting forward the following suggestions to improve the doctrine, includingintroduction of renegotiable liabilities of both parties, stipulation of levels of modification andtermination of a contract, definition the scope of application of the doctrine, as well as limitationof judicial discretion.