Study On Applicable Standards Of Force Majeure And Rebus Sic Stanticus

In the process of performance of the contract,if the unexpected abnormal events cause the performance of the contract to be blocked,force majeure or rebus sic stantibus can be used as the method to solve the dispute.In our country,force majeure is first stipulated in the contract law,and then rebus sic stantibus is stipulated in the judicial interpretation of the contract law.However,the provisions of the two systems are not perfect because of some disputes,and the applicable standards of the two systems are not unified in judicial practice.Therefore,I hope that through the study of this paper,we can clearly distinguish the applicable standards of force majeure and rebus sic stantibus.In addition to the introduction and conclusion,this paper will mainly discuss the following six parts.The first part is to analyze the origin and development of force majeure and rebus sic stantibus.First of all,it discusses the predecessor of the two systems and the reasons for the birth of the system.Secondly,it discusses the application and development of the two systems in different countries and regions in the world,mainly taking French law and German law as examples.Finally,it discusses the system adopted by common law countries,mainly taking British law and American law as examples.The second part is to analyze the current situation of force majeure and rebus sic stantibus in China,and put forward the main questions of this paper.In this part,first of all,through the analysis of the current law,we find that there are disputes and legal loopholes in the scope of application and elements of the two systems.This part also analyzes the content of the draft civil code.Secondly,through the analysis of the relevant cases of the two systems in recent years,we can explore the problems in practice.The third part is to study the types of abnormal events that cause the application of the two systems.First of all,the characteristics of abnormal events in the two systems are compared and analyzed.Secondly,it analyzes the possibility of applying two systems to different types of abnormal events.Finally,it analyzes the causal relationship between the abnormal events and the performance obstruction.The fourth part is the analysis of the degree of performance obstruction in the two systems.For force majeure,it mainly studies the standard of "unable to perform".For rebus sic stantibus,it mainly studies the standard of "continuing to perform the contract is obviously unfair to one party".In addition,it also analyzes the "unable to achieve the purpose of the contract" mentioned in both systems,and finds that the two "unable to achieve the purpose of the contract" have different connotations.The fifth part is to analyze the function and position of the two systems.The main function of force majeure is to exempt from liability,and the function of rebus sic stantibus is to change the contract preferentially.In the position of the contract law,force majeure should be stipulated in the chapter of "termination of rights and obligations of the contract",and rebus sic stantibus should be stipulated in the chapter of "performance of the contract".The sixth part is a comprehensive discussion of all the above,to distinguish the applicable standards of the two systems.For abnormal events,the events of force majeure can be applied to the two systems.But some special events only apply to rebus sic stantibus,such as great changes in social economic situation and specific events which did not occur and so on.For the degree of performance obstruction,force majeure is applicable to the situation in which the contract cannot be performed,and rebus sic stantibus is applicable to the situation in which the performance of the contract is difficult and the purpose of the contract cannot be achieved.For the function and position of systems,the function of force majeure is exemption of liabilities,which is located in the chapter of "termination of rights and obligations of contract".There are two kinds of function of rebus sic stantibus,the first one is the similar function like exemption of liabilities,and the second one is adjustment to the change of contract environment.Rebus sic stantibus is located in the chapter of "performance of contract".Finally,the applicable standards of the two systems should be distinguished by the degree of performance obstruction.