法学电子教案合集（参考资料）_欧洲合同法的规则的有关问题.doc

ElectronicjournalofcomparatiVeLaw,vol.8.1(march2004),<http://www.ejclorg/ D. The relationship between Article 6: 1 11 and Article 8: 108 PECL E Conclusion A. Introduction The Principles of European Contract Law(henceforth PECL)contain two provisions dealing with the situation that the performance of the debtors obligation becomes or is more onerous than expected by the parties at the time they entered into the contract. However, the result of the application of Article 6: 1 11 and Article 8: 108 PECL may be entirely different, lead adaptation of the contract by the court and excuse for the non-performance respectively ngto Although this attempt of drafting a European contract code has provoked much literature in general, there are hardly any writings on the limits of the duty to perform in the principles Thus, the following sections analyse the provision's preconditions, their relationship as well as the borderline between the two The ad ditional aim of this article is to discover similarities and differences between the PECL's statutory provisions and English and German law. These two national systems suit our task because they may stand for the d ifferent approaches to the issue While english law deals with situations we are interested in by means of the doctrine of frustration, 6 German law has, like PECL, two distinct concepts of impossibility?and change of circumstances (2000 Some exceptions are constituted predom inantly by the German debate on the reform of the law of obligations: W Emst, "Die Verpflichtung zur Leistung in den Principles of European Contract Lawund in den und deutsches recht(2000), 129; N NFischer, Die Unmoglichkeit der Leistung im internationalen Kauf-und Vertragsrecht(2001); D P Flambouras, The Doctrines of Impossibility of Performance and clausula rebus sic stantibus in the 1980 Vienna Convention on Contracts for the International Sale of Goods and the Principles of European Contract Law. A Comparative Analysis, 13(2001) Pace International Law Review 261; U Huber Das geplante Recht der Leistungsstorungen,, in WErnst, R Zimmermann(eds), Zivilrechtswissenschaft und Schuldrechtsreform(2001), 31 For a comparison between English and (unreformed)German law, cf recently G Hammer, Frustration of Contract, Unmoglichkeit und Wegfall der Geschaftsgrundlage. Ein Vergleich der losungsansatze englischer und deutscher Rechtsprechung(2001) Cf for an extensive treatment E McKendrick, Force Majeure and Frustration of contract, 2nd edn ( 1995) G H Treitel, Frustration and Force Majeure(1994) $275(1)(3)BGB; the only -however, concise-discussion of those in English so far is R Zimmermann. "Remedies for Non-Performance: The Revised German law of obligations viewed a ga inst the Background of the Principles of European Contract Law,, 6(2002) Edinburgh LR 273, 280ff; cf also idem Breach of Contract and Remedies under the New German Law of Obligations, Saggi, conferenze e sem inari 48 /publications/zimmermann.pdf, 1 1ff

Electronic Journal of Comparative Law, vol. 8.1 (March 2004), <http://www.ejcl.org/> 2 D. The relationship between Article 6:111 and Article 8:108 PECL E. Conclusion A. Introduction The Principles of European Contract Law (henceforth PECL)2 contain two provisions dealing with the situation that the performance of the debtor’s obligation becomes or is more onerous than expected by the parties at the time they entered into the contract. However, the result of the application of Article 6:111 and Article 8:108 PECL3 may be entirely different, leading to adaptation of the contract by the court and excuse for the non-performance respectively. Although this attempt of drafting a European contract code has provoked much literature in general, there are hardly any writings on the limits of the duty to perform in the principles.4 Thus, the following sections analyse the provision’s preconditions, their relationship as well as the borderline between the two. The additional aim of this article is to discover similarities and differences between the PECL’s statutory provisions and English and German law.5 These two national systems suit our task because they may stand for the different approaches to the issue. While English law deals with situations we are interested in by means of the doctrine of frustration,6 German law has, like PECL, two distinct concepts of impossibility7 and change of circumstances 2 O Lando/H Beale (eds), Principles of European Contract Law, Parts I and II, combined and revised (2000). 3 All Articles referred to are those of the PECL unless stated otherwise. 4 Some exceptions are constituted predominantly by the German debate on the reform of the law of obligations: W Ernst, ‘Die Verpflichtung zur Leistung in den Principles of European Contract Law und in den Principles of International Commercial Contracts’, in J Basedow (ed), Europäische Vertragsvereinheitlichung und deutsches Recht (2000), 129; N N Fischer, Die Unmöglichkeit der Leistung im internationalen Kauf- und Vertragsrecht (2001); D P Flambouras, ‘The Doctrines of Impossibility of Performance and clausula rebus sic stantibusin the 1980 Vienna Convention on Contracts for the International Sale of Goods and the Principles of European Contract Law: A Comparative Analysis’, 13 (2001) Pace International Law Review 261; U Huber, ‘Das geplante Recht der Leistungsstörungen’, in W Ernst, R Zimmermann (eds), Zivilrechtswissenschaft und Schuldrechtsreform (2001), 31. 5 For a comparison between English and (unreformed) German law, cf recently G Hammer, Frustration of Contract, Unmöglichkeit und Wegfall der Geschäftsgrundlage. Ein Vergleich der Lösun gsansätze englischer und deutscher Rechtsprechung (2001). 6 Cf for an extensive treatment E McKendrick, Force Majeure and Frustration of Contract, 2nd edn (1995); G H Treitel, Frustration and Force Majeure (1994). 7 § 275 (1)-(3) BGB; the only - however, concise - discussion of those in English so far is R Zimmermann, ‘Remedies for Non-Performance: The Revised German Law of Obligations Viewed against the Background of the Principles of European Contract Law’, 6 (2002) Edinburgh LR 273, 280ff; cf also idem, ‘Breach of Contract and Remedies under the New German Law of Obligations’, Saggi, conferenze e seminari 48 (2000) <http://w3.uniroma1.it/idc/centro/publications/48zimmermann.pdf>, 11ff

ElectronicjournalofcomparatIveLaw,vol.8.1(march2004),<http://www.ejclorg/> (Storung der Geschafisgrundlage) and is- with regard to our issue - the most recently reformed Our comparison is a special one because it compares national legal rules and concepts, rules which are applied and have been applied over years, i.e. hard law, with a newly developed'soft law, which does not govern contracts unless the parties agree on it. Even though the rules differ totally from each other as regards legal nature, the comparison makes much sense. PECL is recognized as a kind of model code for European contract law, serving th the unification and modernisation of domestic contract law In add ition the summarise a common core of European contract law and thus have some similarity with the US Restatements. This common core' may, however, follow a national solution or may constitute a compromise; at least it should achieve results similar to the major legal systems and thus it has to take into account similar if not the same aspects B. Article 8: 108: 'Excuse Due to an Impediment' The first provision in the PECL capable of granting relief in the case of burdensome performance is Article 8: 108, which was drafted after Article 79 CISG. The underlying idea in the PECl is that the debtor is strictly liable for non-performance like in English law, i.e the debtor is liable as long as he is not able to show that his non-performance is excused whereas German law generally requires fault for any liability BI Prerequisites The provision only applies to imped iments subsequent to the conclusion of the contract 10 from French law 12 The non-performance is excused according to paragraph (I)on fou tes The whole situation must be one commonly described as force majeure, which origin conditions Firstly, there must be an impediment. Imped iment is not defined in the PECL themselves nor in their commentary. The examples given include a ship's sinking and a $313(1)3)BGB; it is probably better known under the old terminology of wegfall der Geschafisgrundlage; cf for the concept accord ingto the old law w Lorenz, Contract Modification asa Result of Change of Circumstances,, in R Zimmermann, S Whittaker(eds), Good Faith in European Contract Lau 2000), 357; K Zweigert, H Kotz, Introduction to Comparative Law, 3rd edn(1998), 518ff. Yet the legislator's aim was not to change the existing status of the doctrine; BT-Drucks 14/6040 <http:/dinbundestagde/btd/14060/1406040ndt,175f 9 In theory, the US Restatements rathersummarise the law as it is today, whereas PECL's aim is rather unification-ie. the future development of contract law -than restating current status. Yet the differences should not be overestimated; cfR Zimmermann, Konturen eines Europa ischen Vertragsrechts,(1995) Juristenzeitung 477, 478f Lando/ Beale, n 2, 379(comment B), a previously existing impediment is dealt with in Art 4: 103 Fundamental mistake as to Facts or la Lando/Beale, n, 379f(comment C) For force majeure, cf B Nicholas, "Force Majeure in French Law, in McKendrick(ed), n, 21

Electronic Journal of Comparative Law, vol. 8.1 (March 2004), <http://www.ejcl.org/> 3 (Störung der Geschäftsgrundlage),8 and is - with regard to our issue - the most recently reformed. Our comparison is a special one because it compares national legal rules and concepts, rules which are applied and have been applied over years, i.e. ‘hard law’, with a newly developed ‘soft law’, which does not govern contracts unless the parties agree on it. Even though the rules differ totally from each other as regards legal nature, the comparison makes much sense. PECL is recognized as a kind of model code for European contract law, serving both the unification and modernisation of domestic contract law. In addition, the principles summarise a ‘common core’ of European contract law and thus have some similarity with the US Restatements.9 This ‘common core’ may, however, follow a national solution or may constitute a compromise; at least it should achieve results similar to the major legal systems, and thus it has to take into account similar if not the same aspects. B. Article 8:108: ‘Excuse Due to an Impediment’ The first provision in the PECL capable of granting relief in the case of burdensome performance is Article 8:108, which was drafted after Article 79 CISG. The underlying idea in the PECL is that the debtor is strictly liable for non-performance like in English law, i.e. the debtor is liable as long as he is not able to show that his non-performance is excused, whereas German law generally requires fault for any liability. B.I Prerequisites The provision only applies to impediments subsequent to the conclusion of the contract.10 The whole situation must be one commonly described as force majeure, 11 which originates from French law.12 The non-performance is excused according to paragraph (1) on four conditions. Firstly, there must be an impediment. Impediment is not defined in the PECL themselves nor in their commentary. The examples given include a ship’s sinking and a 8 § 313 (1)-(3) BGB; it is probably better known under the old terminology of Wegfall der Geschäftsgrundlage; cf for the concept according to the old law W Lorenz, ‘Contract Modification as a Result of Change of Circumstances’, in R Zimmermann, S Whittaker (eds), Good Faith in European Contract Law (2000), 357; K Zweigert, H Kötz, Introduction to Comparative Law, 3rd edn (1998), 518ff. Yet the legislator’s aim was not to change the existing status of the doctrine; BT-Drucks 14/6040 <http://dip.bundestag.de/btd/14/060/1406040.pdf>, 175f. 9 In theory, the US Restatements rather summarise the law as it is today, whereas PECL’s aim is rather unification - i.e. the future development of contract law - than restating a current status. Yet the differences should not be overestimated; cf R Zimmermann, ‘Konturen eines Europäischen Vertragsrechts’, (1995) Juristenzeitung 477, 478f. 10 Lando/Beale, n 2, 379 (comment B); a previously existing impediment is dealt with in Art 4:103, ‘Fundamental Mistake as to Facts or Law’. 11 Lando/Beale, n , 379f (comment C). 12 For force majeure, cf B Nicholas, ‘Force Majeure in French Law’, in McKendrick (ed), n , 21

ElectronicjournalofcomparatIveLaw,vol.8.1(march2004),<http://www.ejclorg/> buyer's insolvency. 3 However, the latter is not beyond the control of the party and does not excuse non-performance. According to these examples, "impediment can be described as impossibility, 4 which is no unambiguous term either. There are still obligations that are impossible to perform physically, but technical progress enables us to manage tasks thought to be impossible before Given economic power, time and resources only small ground remains for objective impossibility. Yet, as the reference to bankruptcy shows, it is not an objective but a subjective assessment of impossibility. One has to examine whether the actual debtor can perform or not But this impossibility only covers cases of true impossibility, the commentary limits the application of Article 8: 108 to cases where an imped iment prevents performance'15 and expressly excludes excessively onerous performance. Even an immediate and unexpected price increase of several hundreds of per cent is therefore irrelevant for Article 8: 108. It thus reasonably clarifies the PECL's position on an issue that is highly controversial for Article 8: 108s antetype, Article 79(1)of the CISG. 6 Secondly, the impediment must have been beyond the debtors control. Beyond the parties' control means that the obstacle must be something outside the debtor's sphere of control'7 Force majeure must have come about through no fault of the debtor. 8 For the latter case, the PECLs commentary refers to a delayed performance in order to illustrate this requirement. The reference to any form of culpa in this context illustrates that it is often difficult to distinguish between force majeure and absence of fault. 9 In many cases, the answer to the question whether the obstacle was external and whether the debtor was at fault will coincide. But both limitations are distinct and vary in scope While for external ity it is necessary that it does not fall into a specified/standard sphere of responsibility, 20 fault may Lando/ Bea le, n 2, 379(comment B) Lando/Bea le, n, 324(comment A), although this is stated in the commentary to Art 6: 1 11: Change of Circumstances 15 Lando/Beale, n2, 379(comment A) CfH Stoll, in P Schlechtriem (ed), Kommentar=um Einheitlichen UN-Kaufrecht. Das Ubereinkommen der Vereinten Nationen iber Vertrage iber den internationalen Warenkauf, CISG, 3 d edn(2000), Art 79 CISG paras 39, 40; D Tallon, in C Bianca, M Bonell(eds), Commentary on the International Sales Law: The 1980 Vienna sales Convention(1987),Art 79 para 3.1; A H Hudson, Exemptions and Impossibility under the vienna Convention, in McKendrick(ed), n 6, 267, 276f, Fischer, n 4, 194ff with extensive references Lando/Beale, n 2, 380(comment A(). It appears to be the same test as the extemality test in French law. cf Nicholas n 12.24 Lando/Beale, n2, 380(comment A(), lim its the application to the absence of fault of either party The only sensible solution is that the party at fault must be barred from being freed from liability, for it is not obvious why the innocent party should be prejudiced by culpable behaviour by the oblige Cf for the relationship between force majeure and culpa Cass Civ, 9 March 1994, Bull Civ 1.91(partly translated in H Beale et al(eds), Cases, Materials and Texts on Contract Law(2002),594f) Cf for Art 79 CISG, Schlechtriem/Stoll, n 16, Art 79 para 20 4

Electronic Journal of Comparative Law, vol. 8.1 (March 2004), <http://www.ejcl.org/> 4 buyer’s insolvency.13 However, the latter is not beyond the control of the party and does not excuse non-performance. According to these examples, ‘impediment’ can be described as impossibility,14 which is no unambiguous term either. There are still obligations that are impossible to perform physically, but technical progress enables us to manage tasks thought to be impossible before. Given economic power, time and resources only small ground remains for objective impossibility. Yet, as the reference to bankruptcy shows, it is not an objective but a subjective assessment of impossibility. One has to examine whether the actual debtor can perform or not. But this impossibility only covers cases of ‘true impossibility’; the commentary limits the application of Article 8:108 to cases ‘where an impediment prevents performance’15 and expressly excludes excessively onerous performance. Even an immediate and unexpected price increase of several hundreds of per cent is therefore irrelevant for Article 8:108. It thus reasonably clarifies the PECL’s position on an issue that is highly controversial for Article 8:108’s antetype, Article 79 (1) of the CISG.16 Secondly, the impediment must have been beyond the debtor’s control. Beyond the parties’ control means that the obstacle must be something outside the debtor’s sphere of control.17 Force majeure must have come about through no fault of the debtor.18 For the latter case, the PECL’s commentary refers to a delayed performance in order to illustrate this requirement. The reference to any form of culpa in this context illustrates that it is often difficult to distinguish between force majeure and absence of fault.19 In many cases, the answer to the question whether the obstacle was external and whether the debtor was at fault will coincide. But both limitations are distinct and vary in scope. While for externality it is necessary that it does not fall into a specified/standard sphere of responsibility,20 fault may 13 Lando/Beale, n 2, 379 (comment B). 14 Lando/Beale, n , 324 (comment A), although this is stated in the commentary to Art 6:111: ‘Change of Circumstances’. 15 Lando/Beale, n 2, 379 (comment A). 16 Cf H Stoll, in P Schlechtriem (ed), Kommentar zum Einheitlichen UN-Kaufrecht. Das Übereinkommen der Vereinten Nationen über Verträge über den internationalen Warenkauf, CISG, 3rd edn (2000), Art 79 CISG paras 39, 40; D Tallon, in C Bianca, M Bonell (eds), Commentary on the International Sales Law: The 1980 Vienna Sales Convention (1987), Art 79 para 3.1; A H Hudson, ‘Exemptions and Impossibility under the Vienna Convention’, in McKendrick (ed), n 6, 267, 276f; Fischer, n 4, 194ff with extensive references. 17 Lando/Beale, n 2, 380 (comment A(i)). It appears to be the same test as the externality test in French law; cf Nicholas, n 12, 24. 18 Lando/Beale, n 2, 380 (comment A(i)), limits the application to the absence of ‘fault of either party’. The only sensible solution is that the party at fault must be barred from being freed from liability, for it is not obvious why the innocent party should be prejudiced by culpable behaviour by the obligee. 19 Cf for the relationship between force majeure and culpa Cass Civ, 9 March 1994, Bull Civ I.91 (partly translated in H Beale et al (eds), Cases, Materials and Texts on Contract Law (2002), 594f). 20 Cf for Art 79 CISG, Schlechtriem/Stoll, n 16, Art 79 para 20

ElectronicjournalofcomparatiVeLaw,vol.8.1(march2004),<http://www.ejclorg/> occur even beyond those borders. 2I The illustration of the risk sphere, however, must not be taken literally. It is also beyond a debtor's control if the debtor's factory is destroyed by a terrorist attack, 22 even if the terrorist entered the factory itself. The third requirement is that it could not reasonably have been expected to take the impediment into account at the time of the conclusion of the contract. Either the party should have accepted the risk or have been at fault in not having foreseen it. 3The stand reasonable foreseeability24 jud ged from the perspective of a normal person placed in the same situation. The party should not be too anxious, but if an obstacle is reasonably foreseeable and the debtor nevertheless contracts uncond itionally, he has taken the risk that the Fourth, it is required that it could not reasonably have been expected to have avoided or overcome the impediment or its consequences. The commentary summarises this issue as the impediment being "insurmountable >This prerequisite may be surprising. As the imped iment must be outside the partys control, how could the party have avoided it? The PECL's commentary illustrates: In an earthquake zone the effects of earthquakes can be overcome by special construction techniques, though it would be different in the case of a quake of much greater force than usual. 26 But demand ing an earthquake-resistant construction presupposes that the risk has been foreseen or was foreseeable. In many cases, the prerequisite of a non-foreseeable imped iment steps in. The issue whether an imped iment is insurmountable is hence only rarely relevant. E. g. where the risk was not foreseeable originally -i.e. at the time of the conclusion of the contract -but becomes foreseeable afterwards or where the obligation can be fulfilled in a different way -e.g. in a contract for the delivery of goods that under normal circumstances would be delivered by sea -the imped iment is not irresistible if transfer by air is possible, generally, if there commercially reasonable substitute available. 28 The obligator is required to incur extra Intentional interference by the debtor (unlike culpable action) is not necessarily covered by the standard sphere of responsibility. The delayed performance example provided by the commentary is a special case, because the event that constitutes the impediment may nevertheless be an extermalone. Yet, the fault on the part of the debtor allowed the external event to have its effect on the performance Cf for Art 79 CISG Schlechtriem/Stoll, n 16, Art 79 para 20 Lando/Beale, n 2, 380(comment c(i) Lando/ Beale, n 2, 381(comment c()); cffor Art 79 CISG: Bianca/Bonell/Tallon, n 16, Art 79 para 2.6.3; F Enderlein, F Maskow, D Strohbach(eds), International Sales Law(1992), art 79, para 5.3 Schlechtriem/Stoll, n 16, art 79 para 23 Lando/Beale, n 2, 381(comment c(il)) This illustration is more appropriate for the question of foreseeability. It shows that, although a risk of a specific kind is foreseeable, e.g an earthquake, an earthquake of a strength that could not have been reasonably expected is not foreseeable Nicholas n 12.24 ForArt79Cisg,SecretariatCommentaryArt65,para7ff<http:/www.cisg-online.ch/cisg/materials commentary.htmp,OlgHamburg,28February1997,CisgoNline261<http:/www.cisg- online.ch/cisg/urteile/261. htm>, Schlechtriem/Stoll, n 16, art 79 para 24

Electronic Journal of Comparative Law, vol. 8.1 (March 2004), <http://www.ejcl.org/> 5 occur even beyond those borders.21 The illustration of the risk sphere, however, must not be taken literally. It is also beyond a debtor’s control if the debtor’s factory is destroyed by a terrorist attack,22 even if the terrorist entered the factory itself. The third requirement is that it could not reasonably have been expected to take the impediment into account at the time of the conclusion of the contract. Either the party should have accepted the risk or have been at fault in not having foreseen it.23 The standard is one of reasonable foreseeability24 judged from the perspective of a normal person placed in the same situation. The party should not be too anxious, but if an obstacle is reasonably foreseeable and the debtor nevertheless contracts unconditionally, he has taken the risk that the impediment evolves. Fourth, it is required that it could not reasonably have been expected to have avoided or overcome the impediment or its consequences. The commentary summarises this issue as the impediment being ‘insurmountable’.25 This prerequisite may be surprising. As the impediment must be outside the party’s control, how could the party have avoided it? The PECL’s commentary illustrates: ‘In an earthquake zone the effects of earthquakes can be overcome by special construction techniques, though it would be different in the case of a quake of much greater force than usual.’26 But demanding an earthquake-resistant construction presupposes that the risk has been foreseen or was foreseeable. In many cases, the prerequisite of a non-foreseeable impediment steps in. The issue whether an impediment is insurmountable is hence only rarely relevant. E.g. where the risk was not foreseeable originally - i.e. at the time of the conclusion of the contract - but becomes foreseeable afterwards or where the obligation can be fulfilled in a different way - e.g. in a contract for the delivery of goods that under normal circumstances would be delivered by sea - the impediment is not irresistible if transfer by air is possible;27 generally, if there is a commercially reasonable substitute available.28 The obligator is required to incur extra 21 Intentional interference by the debtor (unlike culpable action) is not necessarily covered by the standard sphere of responsibility. The delayed performance example provided by the commentary is a special case, because the event that constitutes the impediment may nevertheless be an external one. Yet, the fault on the part of the debtor allowed the external event to have its effect on the performance. 22 Cf for Art 79 CISG Schlechtriem/Stoll, n 16, Art 79 para 20. 23 Lando/Beale, n 2, 380 (comment c(ii)). 24 Lando/Beale, n 2, 381 (comment c(ii)); cf for Art 79 CISG: Bianca/Bonell/Tallon, n 16, Art 79 para 2.6.3; F Enderlein, F Maskow, D Strohbach (eds), International Sales Law (1992), art 79, para 5.3; Schlechtriem/Stoll, n 16, art 79 para 23. 25 Lando/Beale, n 2, 381 (comment c(iii)). 26 This illustration is more appropriate for the question of foreseeability. It shows that, although a risk of a specific kind is foreseeable, e.g. an earthquake, an earthquake of a strength that could not have been reasonably expected is not foreseeable. 27 Nicholas, n 12, 24. 28 For Art 79 CISG, Secretariat Commentary, Art 65, para 7ff <http://www.cisg-online.ch/cisg/materialscommentary.html>; OLG Hamburg, 28 February 1997, CISG Online 261 <http://www.cisgonline.ch/cisg/urteile/261.htm>; Schlechtriem/Stoll, n 16, art 79 para 24