Study On The System Of Change Of Circumstances

According to the principle of pacta sunt servanda,as the contract setted up andcome into effect,it should be carried out strictly.Two parties should perform theirrespective obligations as the contract contents,otherwise it may lead to a default.Butafter the parties enter into a contract,the unexpected changes that two parties cannotforesee may also occur.These unexpected changes lead to that it is unnecessary andunfair to continue to perform the contract,it is not only unprofitable to the parties,butalso to the the normal order of market transactions.Therefore,the principle of pactasunt servanda should be changed.In order to adapt to the new situation,the system ofchange of circumstances is produced.Our country’s legislation did not regulation the system of changedcircumstances for a long time,but there were still many cases in the area of thejudicial practice. The famous case is “Gas company of Wuhan v. Testing instrumentand meter plant of Chongqing”.In the similar situation,the court usually deal it withthe principle of honesty and credibility and equity principle.In fact,it is the case ofthe system of change of circumstances.On February9,2009,the Supreme People’sCourt formally established the system of change of circumstances in our legislation by passing on the《The Explanation of some issues on the application of ContractLaw of the People’s Republic of China (2)》.However,in the process of application,itoccurs a lot of problems,especially under the current economic situation,to curb therising price of real estate,the government carry out a series of policies for the sake ofmacroeconomic regulation and control.It brings the very big effect to the real estatemarket,and also causes a lot of legal disputes.For example,whether the housingpolicy dues to the change of circumstances,the difference among the the system ofchange of circumstances、the force majeure and the business risk、how to use thesystem of change of circumstances and so on.Based on the above consideration,theauthor tries to introduce the theoretical knowledge of the system of change ofcircumstances and analyze the problems of this system in applying to put forwardsome proposals of the application of the system of change of circumstances.In this article, the research content are mainly divided into four parts.The first part is the overview of the system of the changed circumstances.Thispart mainlt introduces the origin and the trajectory of the system of the changedcircumstances,and then put forward the value of this system.The emphasis in thispart is the theoretical basis of this system.(1)In common law system that representedby England and the United States,the the main theories are “The Theory of Impliedterms”、“The Theory of a Just Settlement”、“The Theory of Loss of Contract Basis”、“The Theory of Fundamental Change of Compulsory”and so on;(2)In the civil lawsystem that represented by Germany,the the main theories are “The Theory of theSame Circumstances”、“The Theory of Assumptions Concerning”、“The Theory ofthe Basis of Legal Behavior”and so on.The second part mainly introduces the components and legal effects of thesystem of changed circumstances.The author try to study the relationship betweenthe system of the changed circumstances and other related systems,including thetheory of error,the system of the change of the contract,the rescission of the contractand the obligation to bargaining.The third part mainly introduces the related concepts surrounding the system ofchanged circumstances.It includes the force majeure and business risk.The emphasis in this part is to make a comprehensive comparison between the system of forcemajeure and the system of changed circumstances in the constitutive requirements,application effect and so on.In the last part,the author tries to study and conclude the categorization of thesystem of changed circumstances according to the implementation and theoryresearch of the system of changed circumstances in our country.The author alsotries to put forward personal opinions and suggestions for future development of thissystem.