Research On Excessively High Expenses Of Performance

Enforced performance is one of the liabilities for breach stipulated in article 107 of Contract Law of China.If a party fails to perform its obligations under a contract,or renders non-conforming performance,the other party has the right to request performance.Article 110 of Contract Law has set up the “exclusionary rules” to contradict for the request of enforced performance.Excessively high expense is one of the important rules.Due to the lack of legislation,there is a big difference of views on excessively high expense in theory.While in practice,there are some phenomena such as logic confusion and uncertainty in judicial practice.This thesis discusses about the identification,applicable standards and legal effects of the excessively high expense by using empirical analysis and comparative analysis,in order to provide reference for theoretical research and practical application.In addition to the introduction and conclusion,this thesis can be divided into four parts:The first chapter summarizes the problems existing in theory and practice.In theory,the existing domestic research pays little attention to the excessively high expense and does not produce unified view.In practice,there are some problems in the application of this rule,such as ambiguous understanding of concept,unclear range of performance expense,different standards of “excessively high” and confusion with the rule of change of circumstances.The second chapter discusses about the concept of Excessively high expense in the system.The excessively high expense should be understood under the framework of impossibility of performance,which belongs to practical impossibility.In view of comparative law,the German Civil Code,the General Principles of International Commercial Contracts and the Principles of European Contract Law have similar articles of excessively high expense.By contrast,the applicable rules of Article 275 paragraph 2 of the German Civil Code are more specific.In consideration of the ambiguity of judicial practice on the excessively high expense,this thesis distinguishes “excessively high expense” from other concepts in Article 110,such as“performance is impossible in fact” and “the subject of the contract does not lend itself to enforcement by specific performance”.What’s more,the concept of economical impossibility has been included in the context of changes of circumstances and should be distinguished from the excessively high expense.On the basis of clear concept,this thesis analyzes the legitimacy of excluding enforced performance due to excessively high expense.In china,enforced performance takes precedence over compensation of damages.Excessively high expense and efficient breach are two different problems,and the legitimacy does not come from the consideration of economic benefits.The principle of Good Faith is too abstract to be its legitimacy root.The legitimacy of excessively high expense owes to the autonomy of will.As a risk allocation rule,the excessively high expense rule plays a role when the two parties have no special agreement on the performance expense.The third chapter explains about concrete application of excessively high expense.The premise of application is performing non-monetary debt.In terms of the range of expense,it should be identified as the additional expense of performance and the direct expense of performance.The cost of time and labor of the debtor shall be included,but the emotional and spiritual intangible loss of the debtor and the costs arising from the execution thereof shall be excluded.In terms of how to judge“excessively high”,the benefit of the creditor and the burden of the debtor should be appraised,and the judgment should be made after taking comprehensive considerationof each individual case.Change of circumstances are always confused with independent rules.If the two coexist,the rule of excessively high expense should be applied first.The fourth chapter explains the legal consequences of excessively high expense.The most direct consequence is the exclusion of enforced performance.In the case when the debtor is liable,the debtor should replace with compensation of damages.In addition,in the premise of excessively high expense,the creditor has statutory dissolution to the contract,but the debtor does not.