Research On The Issue On Termination Of Contract Caused By Impossibility Of Performance

Para.2 of Art.580 of the Civil Code connects impossibility of performance with termination of contract,which allows the default party to terminate the contract under the condition of impossibility of performance.Due to different legal effects on different types of impossibility of performance,the termination of contract should be discussed under different conditions caused by different types of impossibility of performance.Where the termination of contract is caused by legal or facts impossibility of performance,the impossibility of performance which is not attributable to the party concerned may be caused by an act of god or a third party.Termination of contract caused by this kind of impossibility of performance shall be adjusted by the rules of statutory termination or the rules of risk burden.However,a breach of contract constituted by the impossibility of performance which is attributable to the party concerned shall not take the strict liability as its doctrine of liability fixation.In this situation,the party concerned who cause the impossibility of performance shall undertake the negative consequence of this impossibility of performance,whose right to terminate the contract shall be restrained at the same time.Where the termination of contract is caused by the unenforceable feature of the object,debts with an unenforceable object include debts possessing personal specificity,debts of obligation of omission,debts of highly trust relationship.Excessive expense of performance refers to that the debtor’s cost of performance excessively higher than the income that the creditor can obtain from the performance of the contract.Excessive expense of performance which has a liability attribution only affects the establishment standard of the impossibility of performance,which has no impact on the establishment of the rescission right of contract.Though there is a kind of institutionalized linkage between the termination of contract caused by the unenforceable feature of the object,the rules of changed circumstances,and the rules of efficient breach all have their own independent applicable space.In terms of the way of termination of contract,judicial termination,a kind of procedural limitation,is aimed at preventing a possible abuse of the right of termination.Meanwhile,factors such as the contract purpose,honesty and credibility,and efficiency value should be considered comprehensively in the process of judicial cancellation.In terms of the legal effect of judicial termination,there are only differences in expression between “rescission of contract” and “termination of contract”,and the legal effect brought by both of them is the same.