| Excessive cost of performance is one of the exclusionary rule for the right to specific performance,which stipulated in the second half of Item 2 of the Article 110 of Contract Law of China.With no mature opinion in theoretical studies,the broad provision of the rule results in the confused application in judicial practice.The rule of excessive performance cost belongs to the economic default of contracts,which should be examined in the system of impossibility of performance.In terms of the normative function,this provision is designed to allocate the risk of performance obstacles and implement the principle of specific performance.The right to specific performance contained in Article 110 of Contract Law includes both the primary performance claims and supplementary performance claims.The determination of the corresponding performance cost should distinguish the monetary costs and the additional burdens,and measure the basic attributes.The comparative object of performance cost should be based on the creditor’s performance profit and supplemented by the supplementary performance costs.While the boundary of ’excessive’ is affected by multiple factors,the flexible system approach could be applied in judicial practice.The rule of excessive performance cost gives the debtor the right to defense and leads to the suspension of performance claims.The debt relation still resists when the impossibility of performance becomes permanent and the creditor may claim for damages in substitution or compensatory profits.The creditor also has the right to apply for termination of the contract but the debtor shall not.In case of the concurrence between the rule of excessive performance cost and the principle of changed circumstances,the former shall prevail in order to balance the interests of both parties. |
