The Study On The Principle Of Change Of Circumstances With Contract Of Housing Sale

Since the commercialization of housing policy in1998, China’s real estate market has experienced a series of ups and downs. But whenever the market is on the cusp, the national macro-control is always by enacting policies to turn the tide and ultimately reached the purpose of improving the condition. From2009until now, the introduction of these macro-control policies are becoming more intensive and the changes of these policies are varied. The announcement of Ten New Policies in2010made many real estate developers and buyers surprised, especially made some buyers facing the risk of losing both their money and house.In facing this risk due to the national macro-control policies, both the principle of force majeure and commercial risk has their flaws. Only when we introduce the doctrine of change of circumstances into such a contract dispute and then we can use it sufficiently to protect the legitimate rights of both parties and basic principles of fairness and justice of the Civil Code. Though the change of circumstances was not written in our civil legislation before with the considerations based on many principles, with the development of our social and economic it is a trend to regulate different kind of risks of contract in the law. And it also suit for the basic condition of our country. To legislate the change of circumstances to the law will also improve our civil legislation and conducive to the development process of China’s legal system.Both in common law and civil law countries, the development of change of circumstances have experienced a tortuous process. It is easy to find that the change of circumstances has experienced the process of been decisively rejected and then carefully applied and then laboriously developed, and at last formally legislated. The development process of it is also true in China. We put this principle in our civil law at the beginning of the Reform and Opening up Policies but deleted it with some reasons. Finally this principle was established in the form of judicial interpretation and also provided with a more stringent application of it, so the application of this principle is highly limited. Meanwhile, about whether this principle should be written legislation has also been debated by theorists. The opponent argues that the principle of force majeure and commercial risk have overlapped the change of circumstances and the formal legislation of it maybe abused by some judges and parties. But the ones who support this principle insist that the legislation of it will meet the need of our current social and economic development and its guiding value is far greater than the disadvantages if been used properly. We can also solve the problems brought without the anticipating of different parties, such as the national macro-control polices. And it will also avoid the current condition that the judicial interpretation is limited.This paper is on the analyzing of the principle of change of circumstances with the aspect of its influence on the field of real estate with the impact of the new policies. Its aim is to show that in our current economic situation, the application of the principle of change of circumstances for solving theoretical and practical disputes on contract have a very important guiding significance. The fulfilling of this principle will also provide legal basis for solving the problems involved by neither non-force majeure nor commercial risks.