The Research on the Force Majeure of Contract Law
|School||Jiangxi University of Finance|
|Course||Civil and Commercial Law|
|Keywords||force majeure exemption force majeure clause frustration of purpose|
Force majeure is the common defence that exempted from liability for breach of contract and for tort, thus the exemption system of force majeure plays very important part in judicial theory field. However, there is few research concerned about this aspect, which only focus on the force majeure itself, while not involved the exemption system of force majeure. From the perspective of contract law, this paper will analyse the present force majeure system in China which still has some defects, and put forward some suggestions on how to improve the system of force majeure in China, in the hope of benefiting for the judicial practice.This article altogether can be divided into seven chapters besides the introduction part. Main content of each chapter is as follows:Chapter one mainly inspects the development of force majeure system from five aspects:the origin of force majeure is Roman Law; Civil Law succeed to the stipulation of Roman Law; Force majeure owning its status in Common Law; International Law recognize this system either.Chapter two analyses the content of force majeure. Firstly, the author discusses the definition of force majeure, including the subjective theory, objective theory, and eclecticism, three main theory about force majeure in every jurisprudence and doctrine. Secondly, the author takes the subjective and objective elements of force majeure into account, to classify different cases of force majeure in accordance with law theory of each country and international theory, In order to get to know force majeure comprehensively, this part contains the legal nature of force majeure by making a distinction between force majeure and accident, frustration of purpose, and business risk, that is, a factor of civil law which can cause some legal effect.Chapter three introduces the theoretical basis of the exemption of force majeure. Whether the "victim shoulder the responsibility of accident", principle of liability with fault, causation theory, and " the theory of community interest are the basic theory of the exemption of force majeure or not, the author will give a detail description in this paper, and the principle of fairness is considered as the basic theory of the exemption of force majeure after the above discussion.Chapter four will discuss the exemption of force majeure from the perspective of the force of law in contract. There are three legal effects come about in contract: complete impossibility of performance, partial impossibility of performance, and delay in performance.Chapter five will give a legal analysis on the specific terms of force majeure of contract. To determine a content that should be exited in an outstanding term, this part will propose a specific norm through analysing the nature, act and methods of establishment of force majeure terms.Chapter six evaluates the system of force majeure of contract in China. Meanwhile,the author will specify the relevant provisions on force majeure of contract, and will give a detailed analysis on its rationality and deficiency.Chapter seven provides four proposals to improve force majeure of contract. First, to make sure the parties have a right to conclude some terms of force majeure in legislation. Then, to give a modification to law 117 and 118, and propose the specific ideas on how to make a change. Last, to establish systems of frustration of purpose so as to distinguish it from the force majeure.