Risk Allocation Of Contract Performance Obstacles Due To COVID-19

After the outbreak of the COVID-19 in 2020,many lawsuits on obstacles to contract performance caused by the epidemic have come up,and disputes over lease contracts are one of the typical cases.Due to the unclear application and theoretical basis of the relevant system,the practical treatment is confusing,and the specific application of the relevant system should be clarified from the perspective of risk allocation to achieve the application of the practical cases.In order to focus on typical cases and propose operative solutions,this paper divides the problematic areas of obstacles to the performance of lease contracts into two categories,namely,the allocation of applicable risks and the allocation of risks of operating revenues,and conducts a typological discussion and solution by distinguishing the types of cases.Since this article discusses the application of the relevant case types from the perspective of risk allocation,the first chapter firstly discusses the basic composition of the risk allocation system of lease contracts under the Civil Code.With reference to the classification in German law,the risk allocation rules are divided into:(1)the risk allocation principles inferred from the main rights and obligations of the contract;(2)the agreed risk allocation rules determined through contractual interpretation,the statutory risk allocation rules extracted from the law of arbitrary enactment;and(3)the change of circumstances system to reallocate the existing risks.We also discuss the basic position of the change of circumstances in the risk allocation system,and prove that it constitutes an exclusionary element in addition to the general element that the risk has not been allocated.In order to deal with the case of impediment to performance of the lease contract caused by the new crown epidemic,the relationship between the constitution and application of force majeure,impediment to performance and change of circumstances system is the core issue to be resolved.This is discussed in Chapter 2.Firstly,it is argued that failure to perform should be applied in priority when both failures to perform and change of circumstances are constituted,and then the system will include failure to perform as an exclusionary element of change of circumstances and exclude the application of change of circumstances when failure to perform is constituted.Secondly,in terms of the relationship between force majeure and change of circumstances,a distinction is made between the relationship between force majeure and material change of circumstances,the relationship between the rules of release from force majeure and the rules of release from change of circumstances in terms of composition,and the relationship between the rules of release from force majeure and the rules of change of circumstances in terms of legal effect.The basic view is that there is no competition between force majeure release and change of circumstances release,and their constitutive elements should be considered separately in specific cases for application.In terms of the relationship between the force majeure release and the change of circumstances system,we reject the monolithic legislative view that the legal effects of the two systems should be interpreted in the same way,and believe that the interpretation should be divided on the premise of our dualistic legislative model.Again,commercial risk is not a separate type of risk,and the scope of commercial risk should be determined through contractual interpretation,and the exclusion or exclusion of change of circumstances should be considered in specific situations.In Chapter 3,this paper discusses the application of the above theoretical discussion to two types of cases.In terms of case processing,for both the applicability suspension case and the business income reduction case,the scope of risk of both parties to the contract can be determined through the specific interpretation of the obligation of rentability,and if the content of the obligation has constituted a failure to perform,then it will be handled directly according to the rules of failure to perform and risk burden;if not,then the corresponding rules of force majeure or change of circumstances will be discussed.The two rules of force majeure and the rules of alteration of circumstances are different in terms of the applicable elements and circumstances,and must be discussed specifically according to the constituent elements.