Force Majeure In Contract Law

Force majeure events,especially the nature disasters,always badly destroy people's property and economic transactions.So,force majeure events have been paid close attention to by legislation jurisdiction and doctrine.Irrespective of the legal system and the form of law,Force majeure,attaching to impossibility of performance,as a exemption doctrine,is a necessary.The first part of the thesis is introduction,representing the general situation of nature disaster that happened in the last whole year and the huge impacts on civil economics,especially on economic contracts in transactions.However,it is a pity that the system of force majeure keeps sleepy in Chinese law and does nothing effective and economical for the parties,benefits allocation.To give vitality to Force majeure is the purpose of the article.And there is an interpretation approach,which recognizes a dynamic perspective in determining whether the controversial event happened constitutes force majeure.The next part is about the current analysis of force majeure.According to the legislation concerning the qualified requirements and the purview of force majeure around the world,including that from the typical nations and non-state organization,a popular situation is found that the Civil Law have a strict approach,and now comparatively loose.Being a contrast to the former,the Common Law and the Uniform law have high-level discretion,and however the Chinese law is the stiffest.Civil Law countries,especially Germany,have over-obeyed the concept system of civil law(known as Pandekten),which takes the judgment of force majeure in to a extremely strict field.And as a result,force majeure can merely be invoked through that way.Having noticed that,Germany took a legal technical means,namely by amending the obligation law,to find the way for a more stretched scope including practical impossibility and moral impossibility,but more or less still harbors a hard view.Different form Germany,Common Law countries fix their attention on protect for the aggrieved parties.On one hand,Common Law recognizes parties' autonomic governance over their agreements;on the other hand,it lays the point on benefits balance with an elastic view in handling with requirements of force majeure.The academic circles in China hold that Chinese Contract Law has taken the international law,for example CISG,as a model during its legislation.Maybe,it aimed at the parties' relief like Common Law,however it goes opposite.As to the characters of legal system,Chinese Contract Law resembles Civil Law.And we just stress the absolute strength of the impediment in performance and the exclusive legal effect that whether the debtor could be exempted from his non-performance.On this stage,it seems that we cannot do anything but adopt an approach like Germany.Apparently,solving the problem by a legislation approach,which is deemed as nonsense nowadays in judicial practice,is not an advisable suggestion.The third part describes the dynamic perspective used in establishing force majeure.It conceives that there exists such a theory:If we recognize certain principles in contract law——principle of content control,Vertragestreue,Clausula rebus sic stantibus,equitable principle and bona fides,and also some requirements respectively under them——unforeseeable,fault,insurmountable,totally-negative factors,and possibility of risk scattering,through a co-operation and co-effect way,a combined result could be outputted that either promote the constitution of force majeure or nullify it.Under such an elastic vibration,we determine whether there is possibility to establish force majeure due to its strength of impediment outputted before.Moreover,if the scope of force majeure events is agreed upon therein,the court should respect parties' autonomy.But the events agreed upon should to some extend have the same nature in contrast to the strict ones and then the judge could make his own discretion on its establishment.The forth division deals with the legal effects of force majeure in a dynamic way.A dynamic perspective could not only used to judge the establishment of force majeure,but also the effects thereof,for example renegotiation,extending the term of performance,adjusting the price and avoiding the contract.These effects can gradually and obviously reflect the possibility of performance of contract.The performance of the contract will be more possible,if the strength of impediment given by the force majeure event is weaker.As a result,the legal effect will tend to maintain the stability and force of the contract.Besides the relief approach,the exhibition of dynamic theory could be adopted in exemption from liability.Exemption is just exemption from liability,not necessarily including exemption from performance.In other words,exemption from performance functions only when the strength of the impediment is great enough,because it is just attached to the avoidance of contract.In liability assuming,it is determined in light of the strength of co-function of all requirements that whether the liability is wholly or partially exempted.Admittedly,exemption in part harbors more or less the implication that fault and force majeure could co-function at the same level,not exclusively.The fifth one is the remaining party of the treatise.The synthesis model of impediment in performance will to certain extent be clarified.The requirements of force majeure,if satisfied in a wider sense,will lead to another system named unexpected circumstance,whose synthetic strength of impediment seems weaker than force majeure.Through an analysis of German law,the so-called Wegfall der Geschaftsgrundlage is factually force majeure in a looser sense.Meanwhile,concerning Chinese law,either the legislation or the doctrine holding the same opinion also exists.On the basis of recognizing the dynamic theory,according to the vibration of strength of requirements of force majeure,the synthesis model,a uniform system combing force majeure with unexpected circumstance,is upheld within obstacle of performance.The synthesis model has its advantage in avoiding the hesitation in court that either applying force majeure or unexpected circumstance when a decision is to be made.What we should do is just judging how strong the output after co-operating is,and then,in accordance with the result the court grants the consequential legal effect.And the last of the last is a brief conclusion of this part and also the whole essay.