Excessively High Expenses Of Performance Under The Contract Law Article 110

Excessively high expenses of performance,stipulated in the item 2 of Article 110 of the Contract Law of China,means the debtor may exclude the original payment obligation by claiming that the performance costs are too unreasonable when the creditor requests to continue to perform the contract in the case of non-monetary debts.The abstract literal meaning and the lack of legislation leading to serious confusion in judicial application,especially when the contract deadlock occurs,the court applies the rules at will in order to determine the division and settle the dispute as soon as possible.This paper summarizes three common types of practice and four typical problems in basic judicial practice cases,and demonstrates the application and limitations of the rule from the perspective of clear application of law and screening of legal application effects.From two aspects of system orientation and concept definition,the applicable standard of law is defined.In the terms of system positioning,this paper discusses its positioning in the impossibility of performance and its interaction with other systems.Excessively high expenses of performance is considered to be the economic impossibility in the form of impossibility of performance in China.It also has acertain linking function with the system of contract rescission and termination and the principles of circumstance alternation.Due to the constitutive requirements and legal effects are vague,it is necessary to refer to the mature experience in comparative law,such as The German Civil Code,the Principles of European Contract Law and Principles of International Commercial Contracts which have similar provisions.In the terms of concept definition,this paper combines theory and practice from four aspects: the applicable premise,the concept of performance cost,the comparison of comparative law that can be used for reference to define and explain the rule of excessively high expenses of performance in China.On the basis of clarifying the positioning and theoretical basis of excessively high expenses of performance,this paper analyzes the key points and difficulties in practical application.From the perspective of protecting the principle of good faith,the legitimacy of strictly abiding by the contract,and the conflict of needs in the interest measurement of maintaining economic efficiency,this paper puts forward that we should adhere to the principle of good faith,abandon the breach of efficiency,give priority to the continuous performance,and strictly limit the application of the rule of excessively high expenses of performance.Moreover,in terms of legal effect,this paper discusses the right to exclude the defense of compulsory performance caused by the excessively high expenses of performance as a state of impossibility,and the corresponding legal effect caused by the connection of breach of contract system.Finally,from the perspective of system design,this paper discusses the solution of excessively high expenses of performance and the deadlock of the contract.Excessively high expenses of performance itself can not solve the problem of deadlock of the contract.Under the framework of the rule of excessively high expenses of performance,the establishment of the party in breach of contract has a certain positive significance to resolve the contract deadlock,but also needs to consider how to adhere to the principle of strict adherence to the contract to avoid moral hazard.This paper proposes that the party in breach of contract can apply for the right of rescission and give the right of rescission decision to the judicial organ,but the better solution is to perfect the rules from the interpretation of the rules ofperformance costs and the construction of the impossibility of performance from the interpretation of the loopholes in the system itself.