Research On The International Convergence Of Force Major In Contract Law

Legal convergence is a trend today, as a institution in civil law system, forcemajor also can’t make an exception. The force major investigated in the article hasbeen imitated to the field of contract law.Part one explores some of the basic problems of force major, mainly about itsorigin, definition, constitution elements and comparison with some of the concepts. Itis widely accepted by theorists that force major originated in Roman law as a lowerconcept of incident. In regard to the definition of force major, the author hasdiscoursed three views which are subjective, objective and compromise. Eclecticperspective is more recognized in the world,which on the one hand emphasize theexternality of force major, on the other hand it also emphasize that parties to contractshould fulfill the duty of care. Related to the constituent elements of force major, theauthor mainly discussed it in angle of eclectic perspective and put four elements as thestandard for determining, the four elements are unpredictability, inevitability,insurmountable resistance and objectivity. At last, in order to further clarityconnotation and denotation of force major, the author also compared it with otherconfusing concepts. First is force major vs. accident. The key distinction lies in theirrelationship between species. Specifically, there are obvious differences in theircauses, relationship between damage results and causes, predictability and the specificprovisions of the law. Second is force major vs. change of circumstances, the authorcompared them in angle of scope, manifestations and legal consequences.Part two is about comparative review of force major. In this part first is theintroduction of provisions about force major in civil law system, such as Germany andFrance, and common law system, such as England and America, as well as someinternational legal documents. Mainly is force major system in French law,impossibility theory in German law and frustration of contract in common law,additionally relevant provisions in CISG, PICC and DCFR. Then, on the basis of theseintroductions, compare discussed them from aspects of system name, system contentand legal effects, analyze their similarities and differences profoundly. Part three is the key part of the article, that is, on the basis of system comparisonin part two; discuss convergence of force major system mainly in four aspects. Thefirst is homology of theoretical basis---the principle of fairness. At the beginning ofthe system, this principle which rooted in the deepest part precisely is a considerationand always affects the evolutionary process of the system as a most profoundcondition and reason. The second is convergence in development process that is civillaw followed Roman law, German law and French law can be seen as examples, andthe two legal systems learn from each other. We can say that these can be seen as animportant way and performance of convergence of force major. The third isconvergence in legal practice. In this part the author mainly disserted appliance offorce major clause. At the end of this part, the article also analyses aboveperformances of convergence and reveal their relationship.In the last part of this article, the author discussed inspiration to our law of theresearch. First is the introduction of present provisions of force major in our law. Thencombined with the research on the convergence of force major and excellentexperience of legislation and practice in other countries, review China’s currentprovisions and suggest amendments. This part mainly mentioned commonly applianceof force major and change of circumstances, flexibility in the use of right to rescind acontract as well as the appliance of force major clause.The conclusion makes a final summary.