The Principle Of Change Of Circumstances

Owing to the unpredictability of the contract and the principle of not attributableto the circumstances of the parties in a validate contract, these reasons lead to theresult of the contract will cause the obviously unfair results between the parties if it iscontinued to be performed. Under the condition of the parties not agreed on sharingthe way of risk, law provides relief to the contract performance to avoid thehappening of unfair results is called doctrine of change of circumstances. As theexception of abide contract principle, the doctrine of change of circumstances is theresult of legal pursuit of substantial fairness in contract.This thesis has five chapters. The first chapter is introduction concernedessentially with related theories of change circumstances in some developedcountries with common law system and civil law system.In the second chapter, first of all, the author states the connotation of thedoctrine of change of circumstances and describes the theoretical development by theway of time variation. Secondly, on the basis of six aspects of the constitutive andapplicable requirements of the doctrine of change of circumstances, the authorexpounds the change of legal effect or dissolution of contract applies to the doctrineof change of circumstances. In order to guide the judicial practice, the author alsocompares the doctrine of change of circumstances with the other rules and terms ofContact Law such as the force majeure, the commercial risks. Then, the author putforward the theoretical value of the doctrine of change of circumstances.In the third chapter, the author mainly inspects Germany’s trading system, thecontract frustration theory of the Anglo-Saxon countries and the Theory ofunpredictability of France. Germany’s transaction based system is mainly introducesthe “economic theory”, Altman’s “behavior theory” and Larenz’s “the coherence ofthe trade theory”; the contract frustration theory of the Anglo-Saxon countriesintroduces the theory of contract cannot performed,“the purpose of the contractfailed” theory and “business performance does not reality” theory; France’s“unpredictable” theoretical part mainly introduces the “contract must strictly abideby” theory in the private law area and “unforeseen flexible apply” theory in thepublic law area (similar to the theory of the doctrine of change of circumstances). Inthe introduction to the theory of British and American, Germany, France, this paperbriefly introduces the Swiss, Japan, Italy and other countries in the theory of the doctrine of change of circumstances.Finally the author makes a summary of theapplicable scope and applicable results.The fourth part introduces the doctrine of change of circumstances in the legalpractice of our country. Firstly, the author introduces the development of the doctrineof change of circumstances by three period of time such as the time before liberation,liberation to the time before reform and opening-up and the time since reform andopening-up. Then, the author analyzes the article26of the doctrine of change ofcircumstances of Contract law judicial interpretation (2). At last the author introducesthe doctrine of change of circumstances in the case of the practice in our country,such as the rural land circulation, severe acute respiratory syndrome (SARS) causedby disputes over contracts and real estate New Deal after the purchase contractdispute.In the fifth chapter, the author puts forward some suggestions of the doctrine ofchange of circumstances in our country from three aspects as the applicablecondition, applicable procedures and applicable effect.