The Application,the Legal Effect And Relevant Compensate For Loss Of The Contract Law Article 110(the Impossibility Of Performance)

Looking through the Chapter VII of contract law, contract law Article 110 is the special regulation about the right of the claim for performance under the Article 107. The prerequisite of the Article 110 of the Contract Law is as same as the Article 107. Meanwhile, the application of Article 110 also need its own unique prerequisite, first it must be non-monetary obligation, second it must meet the three, actually four requirement listed by the Article 110.They are performance that is impossible in law or in fact, the object of liability is not suitable to be enforced,the expensive for performance is too high, the obligee does not require performance within a reasonable period.In fact,the performance that is impossible in law or in fact is the typical impossibility of performance(Unm?glichkeit). Through the distinguish within fulfillment of the purpose, the fail of the purpose or the obstacle of the purpose determine under which circumstance it belong to the performance that is impossible in law or in fact. Besides,under which circumstances, obligatio generis also belongs to the performance that is impossible; ob the temporary impossibility will be treated by different way, and other questions about impartial impossibility and incompletable impossibility. These conclusions above not only be applied to the typical impossibility, but also other three circumstance under the Article 110. This can be referred to the general rules of contract law article 110. But each of them has their own special problems.Under which circumstance does it belong to the object of liability that is not suitable to be enforced?I advise that there are two kind of circumstances for it: one which is irrational highly dependent on the obligor personally to fulfill in order to achieve the purpose of the contract, the other is the necessary production or living materials of the obligor.About the circumstance that the expensive for performance is too high, I will first introduce the cost of performance and fulfill the interests on the significant imbalance, the barrier to the base of trade(also calle economy impossibility), actually impossibility,the three kinds of similar situations in Germany civil law theory.Thus there are three kinds of understanding about the expensive for performance is too high,so that with respect to the debtor’s creditors performance interest is too high, the cost of performance with respect to the debtor’s debtor to perform the contract resulting high interest, or the cost of performance beyond the debtor’s ability to fulfill the debtor.The last situation is that the obligee does not require performance within a reasonable period.Now the authority view is that if the obligee don`t claim the enforcement for performance at time,the right of the enforcement for performance fails when the deadline of the performance is end without the performance of the obligor. I don`t agree about that opinion because if both parts have agreed to the deadline of performance, regardless whether the creditor to fulfill requests made, the debtor has the duty to fulfill the original performance. Only when the deadline is not clear, the creditor can at any time request then third term of the Article 110 can be applied.Since the other three term with the typical impossibility share the same constituent elements, the same legal effect, including the method to deal with the partial, the temperate impossibility, the incompletable performance is the same, there is no need to distinguish between them,.So I insist that there should be a upperseat concept for them. Authority view is the limit of the right to enforcement.I think,the concept of impossibility is better,because it not only concise,but also convenient to exchange with foreign scholars.If the legal effect of Article 110 is literally consider as the eliminate of the right for performance, there is logical contradiction while one fo the prerequisites of the Article 110,also the Article 107 is also literally consider as breach of obligation.So either change the prerequisite is not achieved, an additional breach of the obligation of protection, or to amend the legal effect as the right of defense like the limitation period. the obligee can still request and retain the debtor’s afterward voluntary performance, or both simultaneously corrected.Under the circumstance of the Article 110 of the Contract Law, if the party can`t get his performance,he tend to make a compensate for damages based on Article 107 of the Contract Law. Be careful, if the legal effect of the Article 110 is the right of defenses, the right of performance is excluded, otherwise it will cause double benefit.In addition to the compensate based on Article 113 of the Contract Law requested for damages equivalent to situation if the performance of the contract is fulfilled the obligee can obtain, but we also need to consider the situation when the damage can not be calculated or there is no damages occurred by the breach of contract.Can the obligee demand the compensate for the loss which he spend for the contract based on trust to the possibility of performance of the contract? The compensation is not expressly enumerated in the general part of contract law, but according to the Contract Law Article 283, 284 the compensation for the loss in contract law really exist. Therefore, based on the quote of Article 107 of the Contract Law "and so on," applied by analogy Contract Law Article 283, 284, there is compensation for the loss failed which is not expressly enumerated.