Research On The Identification Standard Of "Excessive Performance Cost" In Continuing Performance Contract

On the way of accepting liability for breach of contract,our country mainly adopts the way of continuing performance to guarantee the parties’ rights,but in the actual performance process,there will be some difficult situation to perform.For this reason,Article 110 of the Contract Law stipulates the exclusions for continued performance.After the Civil Code comes into force,the corresponding contents are stipulated in Article 580 of the Civil Code.Although high performance cost is an important exclusion cause,it is only a few words in the law,which is very broad and abstract,leading to the academic and practical circles’ understanding and grasp of high performance cost are controversial and different.After the court of second instance of the Xinyu case used the high cost of performance for reasoning and made a ruling in favor of it,more and more courts began to use the high cost of performance as the legal basis for refusing the creditor’s request for compulsory actual performance.However,with the study and analysis of the cases in which the high cost of performance is applied by local courts as the basis of judgment,it is found that the following problems exist in the application of the high cost in specific cases: the scope of the cost is not clear,the object of comparison is uncertain,the standard of "too high" is not clear,and it is easy to be confused with the situation change.As for the scope of performance expenses,after the study and analysis of such cases,it is believed that in addition to the undisputed monetary costs,performance costs should also include labor costs,time consumption,remedial performance costs,etc.,but basic expenses,court execution costs,third party intervention costs and other expenses should be excluded.As for the comparison objects with high performance costs,there are mainly the following four viewpoints in the theoretical circle: comparing with the debtor’s performance interests,comparing with the performance interests of both parties to the contract,comparing with the creditor’s performance interests,and comparing with the debtor’s affordability.In the above point of view,compared with the debtor’s performance interests,ignores the consideration of the interests of creditors,does not conform to the principle of good faith,and is easy to be confused with the situation change;Compared with the fulfillment interest of both parties to the contract,it is based on the theory of "breach of efficiency" for the justification basis,which is not consistent with our current practice.Compared with the debtor’s affordability,it does not consider the interests of creditors and deviates from the function of high performance costs.Compared with the interests that creditors can obtain through the contract,it not only protects the purpose of the contract between the two parties,but also effectively protects the interests of creditors.The "excessive" standard of performance cost can be set by introducing the dynamic system theory,taking the principle of autonomy of will and the principle of actual performance as the principle elements,and taking the public interest,the debtor’s fault,the creditor’s sacrifice limit as the factor elements.The basic evaluation can be considered as the performance cost exceeding 30% of the performance benefit.In a certain case,there is excessive performance cost and the application of the change of circumstances system.At this time,the priority should be given to the application of the change of circumstances system in the case of meeting the expectations of debtors and creditors.