The Type Analysis Of The Contract Impasse And The Method To Break

This thesis focuses on the concept of contract impasse,aimed at breaking the contract impasse,which is divided into three parts.The first part defines the characteristics of contract impasse and the factors of its connotation.Contract impasse is an uncertain legal concept without a clear definition,which can be identified through the way of describing characteristics and the factors of connotation.The essential characteristic of contract impasse is that one party breaches the contract during the performance of the contract,and the non-breaching party have the rights of relief but does not exercise it,while the breaching party cannot get rid of the uncertain state of the performance of the contract.The factors to consider the connotation of contract impasse are as follows: the element of contract type that distinguishes between discrete contract and continuous contract;defaulting element;result elements that can’t continue to perform and frustration of purpose.The second part analyzes the type of contract impasse by studying cases,laying the foundation for different methods to solve different types of contract impasse.First of all,according to the type of contract,it can be divided into two categories: discrete contract and continuous contract.Contract impasse often appears in continuous contract,but it should be noted that discrete contract such as sales contract also has contract impasse,and the two types should be considered with different emphases.It can also be divided into two categories according to the time-sequential relationship between the request to terminate the contract and the default behavior: rescission constitutes default and rescission after default,which can be further subdivided.The first category is rescission constitutes default with refusal to performance,taking Feng Yumei case as a typical one.The core is whether the subject of duty of performance should continue to performance or not,which should be judged by the application of paragraph 1 of Article 580.The second category is rescission constitutes default with refusal to receive,and the lease contract is the typical one,which can be dealt with through three solutions: if a delay in acceptance is constituted,the performance shall be substituted by escrow;if a change of circumstances is constituted,apply change of circumstances rules to change or terminate the contract;if neither of them are in conformity,the termination of continuous contract should be applied.The third category is rescission after default with refusal to performance.In this type,at least when the observant party’s duty is non-monetary obligation,it should be decided by itself whether to continue to performance and whether to terminate the contract,otherwise it will deprive the observant party of the opportunity to provide labor in exchange for consideration.The third part criticizes the existing practice and puts forward the feasible methods to break the contract impasse.First of all,the breaching party’s right to terminate is not justified.On the one hand,there is no legal basis.According to Article 94 of the Contract Law,the subject of statutory right of termination does not include the breaching party.And Article 110 is only a defense clause,the right to terminate of the breaching party cannot be deduced from it.On the other hand,it’s not necessary to set up this system and efficiency breach can’t give a strong demonstration.Since Paragraph 2 of Article 580 of the Civil Code establishes the judicial termination system,attention should be paid to the interpretation and application of this article under the premise of positive response.In terms of the scope of application,this paragraph is dependent on the exception of actual performance of non-monetary obligations and cannot cover monetary obligations;the term "termination" leads to the misunderstanding that it is only applicable to the continuous contract,but actually it’s also applicable to discrete contract.In terms of the applicable standard,the standard of judicial termination is abstract.The fault of the parties,the possibility of re-dealing,the risk burden and the rest performance time of the continuous contract are factors worth considering.Secondly,the termination in continuous contract can solve the contract impasse,which divided into ordinary termiantion and one with a compelling reason.Thirdly,the duty to mitigate the damage forces the non-defaulting party to rescission,eliminating the contract impasse from the beginning.Fourthly,from the perspective of procedural law,we can use the negative confirmed lawsuit to break the contract impasse,where the breaching party applies for court judgment to confirm that the breaching party no longer needs to continue to perform.