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Research on Impossibility of Performance

Author: WangZuo
Tutor: MaXinYan
School: Jilin University
Course: Civil and Commercial Law
Keywords: Can not fulfill Breach of contract form Comparative Law Perfect
CLC: D913
Type: Master's thesis
Year: 2006
Downloads: 264
Quote: 6
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Abstract


Historically, the appearance of impossibility of performance can be dated back to Roman Law. It is not only an essential part of contract law systems, but also a favorite subject among law theorists. But there are different meanings in English-American law family and German law family concerning the term, added by the debate of those scholars, referring to it’s relationship between defaults and effects of contracts brings problems in practice. The author writes this paper with an attempt to analyze these issues and to identify proper solutions. There are four chapters all together. Beginning with the term’s definition, sources and classification, the thesis pays more attention on its differences from contract default and its relationship with contract effects. In the end, the writer advance crude proposals for our laws to improve.The first chapter is an introduction, including its definition, classification and sources. Firstly, definition of impossibility of performance, which means more than the same thing in German Civil Law Code and American Contract Laws system, The term in this paper is knows as debtor’s inability to fulfill a contract and the courts fail to enforce the debtor to achieve it. Secondly its classification of impossibility of performance. It offers a deeper understanding about the term and prepares us for the research of its effects. Further, unless we have a clear classification, we cannot confirm the various effects of all kinds of impossibility of performance, which determines the diverse lawful effects in present laws of countries. Generally speaking, it can be typed into followings: impossibility from beginning or halfway, subjective or objective impossibility, impossibility forever or temporary, all impossibility or parts impossibility, impossibility because of facts, laws or economical conditions. Thirdlty, sources of impossibility of performance. It originates from Roman Law which only has some words about objective impossibility. Though there is no trace about the beginning or halfway impossibility in the original, the author still would like to spend some time on the analysis of the sources.The second chapter concerns the impossibility of performance and defaults of contracts, with the research on default; we acquire more about the issue and judge the

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