The Unrealization And Realization Of The Objective Of Payments

The unrealization and realization of the objective of payments is a complex problem in traditional civil law. How to deal with this problem is always controversial. The German traditional civil law recognize these two situations as 2 particular cases of impossibility. The general provisions of impossibility shall supply to such situations, however, in order to endow the obligator with a certain right of claim of payment, general theory think, in addition to the general provisions of impossibility, the Par. 1of Art. 537, Sentence 1 of Par.1 of Art. 645 and Art.615 shall also apply. However, in China, the provision about impossibility in current legislation is far from complete. And there is no provisions on the situations of the unrealization and realization of the objective of payments. Thereby, by referencing the disposal of the unrealization and realization of the objective of payments in German civil law and the current provisions in Chinese law, this thesis try getting a satisfactory solution according to legal dogmatics.Besides introduction, this thesis is divided into 5 parts.The first part mainly introduce the division of contractual objectives in German civil law, this division that contractual objectives is divided into “basic objective” and “further objective” is the beginning of the discussion in this thesis.The second part aims at the subsumption of the unrealization of the objective of payments and is mainly divided into two subparts. The first subparts mainly introduce the subsumption of the unrealization of the objective of payments in German law. At first German law recognize this situation as default of the creditor. After longtime discussion, German law finally accept K?hler’s view and recognize the unrealization of the objective of payments as impossibility. Based on current Chinese law, with the provisions that the unrealization of contractual objectives lead to legal rescission right serves as breach, which is compared with the similar provisions in German law and Anglo-American law, the second subpart finally draw the conclusion that in Chinese law, there is no differentiation between the unrealization of the objective of payments and impossibility on narrow sense and both of them are included in the category of the unrealization of contractual objectives, namely impossibility on broad sense. Hence, the unrealization of the objective of payments shall be impossibility.The third part focuses on the legal outcome of the unrealization of the objective of payments. This part is also divided into 2 subparts. The first subpart mainly introduce the legal outcome of the unrealization of the objective of payments in German law. In German law, the general provisions of impossibility shall supply to such situations, however, in order to endow the obligator with a certain right of claim of payment, general theory think, in addition to the general provisions of impossibility, the Par. 1of Art. 537, Sentence 1 of Par.1 of Art. 645 and Art.615 shall also apply. This attitude shall also be accepted by Chinese law. So, in the second subpart, after analyzing the general legal outcomes of impossibility in Chinese law, this thesis think the obligator, like those in German law, shall be endowed with a certain right of claim of payment or compensation by analogy or direct application of relevant provisions, so as to balance the interest of the creditor and the obligator. this thesis think the Art. 257, 284, 311 and 407 may apply. At last, in respect of the differentiation between the unrealization and realization of the objective of payments and frustration of purpose, this article think we may avail ourselves of the theory of the relativization of contractual objective in German civil law.The fourth part focuses on the disposal of the realization of the objective of payments. After introduction of Beuthien’s theory and relevant criticisms, I agree with K?hler’s view: there is no essential differentiation between the unrealiztion and the realization of the objective of payments. The cause of the unrealiztion or the realization of the objective of payments is only the creditor’s risk and has nothing to do with the obligator as well as the contractual relationship. Hence, the realization of the objective of payments shall be dealt with like the unrealization of the objective of payments.The fifth part focuses on the differentiation between the unrealiztion or the realization of the objective of payments and frustration of purpose. Besides brief introduction about frustration of purpose in traditional civil law, this thesis focuses on the disposal of the situations that both parties know the further objective of one party, but fail to reach an agreement thereon, or reach an agreement thereon, but fail to reach an agreement on the outcome of unrealization of further objective. Besides criticism on Beuthien’s theory, I agree with K?hler’s theory, namely the relativization of contractual objective.