The Application Of Force Majeure Clause In Tort Liability Law

This paper mainly studies the force majeure clause in the tort liability law. This papershows that the current understanding of the force majeure even completely based on theconcept and connotation of the force majeure in contract law, but in fact the force majeure incontract law and tort liability law shall distinguish, and has its positive significance. Inaddition, the tort liability law mainly adopts the Pandect system, total score, or "general termsand enumeration" code structure, makes it tight logic, but the essence of tort liability lawsystem has stronger openness, and constrained by the limitations of legal language, the judgehad many difficult when applying the force majeure clause. In this paper, this problem is thecore, through the theoretical and empirical studies, and tries to explain by unified theorymethod to ease and resolve this difficulty.Besides preface and epilogue, this article text is divided into four parts:The first part combed the origin and development of the concept of force majeure,making a point that tort liability law in France, Germany, Japan and China, the provisions ofthe force majeure clause were directly derived from the view of contract law, and thendemonstrating the difference of the force majeure between contract law and tort liability law.Based on all of these, questioning the rationality of the relevant provisions of force majeure intort liability law, then putting forward the the nature of the force majeure in tort liability lawin order to correct scholars and judges understanding of force majeure in tort liability law.The second part studied the influence of force majeure in tort liability law, throughdiscussing the force majeure between causal relationship, subjective elements, tort liability,negligence offset, etc, the relationship between finds that the impact of the force majeure totort liability law is gradually deepened, demonstrated the importance and necessity of theforce majeure within the category of the research in tort liability law.The third part through the perspective of empirical research and a lot of cases, listingforce majeure system in tort liability law had several major disadvantages, mainly included:the concept of force majeure was difficult to the judge to grasp, the system design of tortliability law Influenced correctly application of force majeure, the ambiguous attitude to thecausation theroy, the confusion of the application in the force majeure clause on highlydangerous liability, the irrationality of the force majeure rationality for environmental tort liability, classification of lack of theoretical basis between absolute no-fault liability andrelative no-fault liability of force majeure in terms of animal feeding, unclear scope in termsof exemptions of product liability and motor vehicle accident liability, etc.The fourth part from from the perspective of the theory of interpretation, putting forwardthe thinking of the right to apply the force majeure clause, demonstrated that the forcemajeure clause need to consider when appling the basic theory and measure of factors. On thisbasis, the application of the force majeure clause could be divided into three basic types:absolute inapplicability, flexible application and restrict application. And discussed the Thetype of responsibility in chapter4of tort liability law which was special, then putting forwardthe comparatively complete applicable method in tort liability law of the force majeureclause.