| In recent history the concepts of "Contract" in both the Civil Law system and the Common Law system were based on the theories of " Freedom of Contract" and of "Absolute Contract", which strictly excluded the legal principles that could make the contract void or modified. However, the change of the circumstances and the foreseeablity of the contract parties could sometimes make the parties' actual rights and obligations different from what the parties had really agreed at the time when they were making their contract. This phenomenon represented the contradiction between the formal justice that the law defended and the actual justice of the parties. The contradiction developed into a full play in the period of the two world wars. As a result, the civil law system (e.g. Germany) re-acknowledged the "clausula rebus sic stantibus" and the common law system (e.g. UK) developed the "Doctrine of Frustration".Chapter 1 is about the "clausula rebus sic stantibus". The "clausula rebus sic stantibus" originated in 12th and 13th century, was accepted in 16th and 17th century, declined in the 18th century and was re-acknowledged in the 20th century. There are three generally accepted theories of the "clausula rebus sic stantibus": "the theory of Unforeseeablity" of French law, "the theory of Die Geschaftsgrundlage" of German law and the "Bona Fide" of German cases. The writer considers the theory of the "Bona Fide" is more reasonable, which has derived the "clausula rebus sic stantibus". The conditions of the "clausula rebus sic stantibus" are: 1. There should be the changes of circumstances; 2.The changes of the circumstances should happen before the legal actions; 3. The changes of circumstances must be unforeseeable or have not been foreseen by the parties. 4. The changes of circumstances were not caused by the action of the parties. 5. If the effect of the legal action were maintained there would be apparently unfair between the parties.It is generally considered that there are twice effects of the "clausula rebus sic stantibus". The first effect is to modify the terms of the contract. The second is to void the contract. The write considers there is only one effect.The Chapter 2 is about the "doctrine of frustration". The acceptance of this doctrine could be divided into two phases. The first phase is from 1863 to 1951. In 1863, the Taylor v. Caldwell is the first case to break the "theory of absolute contract". The theory of "Implied Terms" was established in this case. Later, the Judges also established the theories of "Just Solution" and "Foundation of the Contract". The second phase begins in 1951 when the case of British Movietontnews Ltd. v. London and District Cinemas marked that the "doctrine of frustration" has developed from the physical impossibility, legal impossibility to the change of circumstances, which represented, to a certain extent, the Common Law had accepted the "clausula rebus sic stantibus".The applications of the "doctrine of the frustration" can be divided into three categories: 1. Impossibility; 2. Frustration of Purpose; 3. Illegality. The conditions of the doctrine are: 1. Unforeseen or Unforeseeable events 2. Not being the self-induced frustration 3. Impossible to perform or frustration of purpose. The "Law Reform (Frustrated Contracts) Act 1943" and the "Restatement of Contract" have reflected the reforms in the effects of Frustration.Chapter3 is the comparative study of the "clausula rebus sic stantibus" and "doctrine of frustration". The writer thinks that the purpose of the two principles is to recover the balance and justice between the parties. However, there are also many differences between the two principles, such as on the application, from the aspects of contract, from the judges roles and effects, etc. It is acknowledged that the two principles learn from each other and gained some common aspects to a certain extend. Chapter4 is about the establishment of the model of the dealing with the changed circumstances in China. The "Supple... |
PDF Full Text Request