This paper provides information about the doctrine of the “change of circumstance” and its approach in 3 different countries. Moreover, legitimacy and appropriate scope of the doctrine is assessed as the conclusion of the paper.
Table of Contents
1. INTRODUCTION
2. CHAPTER I People’s Republic of China
3. CHAPTER II ENGLAND
4. CHAPTER III The United States of America
5. CONCLUSION
Objectives and Topics
This paper aims to analyze the doctrine of "change of circumstance" across three distinct legal jurisdictions—China, England, and the United States—evaluating its legitimacy, scope, and practical application in modern contract law.
- Comparative analysis of contract law doctrines regarding unforeseen events.
- Examination of judicial interpretations and legislative frameworks in China.
- Evaluation of the English doctrine of frustration and its limitations.
- Assessment of the US approach, including commercial impracticability and the Restatement (Second) of the Law of Contracts.
Excerpt from the Book
CHAPTER I People’s Republic of China
The legal System of Chine is socialist system which is generally based on Civil law model. The origin of the current legal can be tracked back to the period of the Chinese Soviet Republic in the revolutionary bases prior to the establishment of the People’s Republic of China. The first formal piece of legislation, commonly referred to, was the Common Programme of the Chinese People’s Political Consultative Congress promulgated in 1949 which laid down the essential principles of the Constitution which was adopted in 1954.
Political changes induced the government to make reforms in the legislation. Moreover, after the entry of China into World Trade Organization the temp of reform in the Chinese Law raised significantly. The development of the Chinese legal system over the past twenty years has reflected a process of selective adaptation, by which borrowed foreign norms about law and legal institutions have been mediated by local legal culture. Despite the fact that the doctrine of “change of circumstances” was very necessary for judicial practice it had not been added to the legislation at that time.
It should be mentioned that the main source of the doctrine of the “change of circumstances” in China is judicial practice. In 1993, the Supreme People’s Court formulated this doctrine in the following terms:
If, due to causes for which neither party is responsible, there occur fundamental changes, unforeseeable to the parties, in the objective circumstances that are the foundation of the contract, thereby making it evidently unfair to perform the original contract, the contract may be modified or terminated according to the principle of change of circumstances upon application by the parties.
Summary of Chapters
INTRODUCTION: This chapter provides an overview of the "change of circumstance" doctrine, defining its function in addressing unforeseen events that fundamentally alter contractual obligations.
CHAPTER I People’s Republic of China: This chapter details how the doctrine evolved in China through judicial interpretation, specifically focusing on the Supreme People’s Court's formulations and the impact of the 2008 financial crisis.
CHAPTER II ENGLAND: This chapter explores the English doctrine of frustration, tracing its history from early court cases and discussing the limitations courts face in adapting contracts.
CHAPTER III The United States of America: This chapter examines the US approach, which synthesizes frustration and commercial impracticability, highlighting the role of the Uniform Commercial Code and the Restatement (Second) of the Law of Contracts.
CONCLUSION: This chapter assesses the overall legitimacy and scope of the doctrine, weighing its theoretical fairness against the practical challenges and discretionary difficulties encountered in judicial application.
Keywords
Change of circumstance, Contract law, Hardship, Frustration, Commercial impracticability, Judicial interpretation, China, England, United States, Good faith, Pacta sunt servanda, Legal doctrine, Contract modification, Fairness, Supreme People’s Court.
Frequently Asked Questions
What is the core subject of this research paper?
The paper examines the legal doctrine of "change of circumstance" and how it is applied to relieve parties from contract performance when unforeseen events occur.
What are the primary geographic areas of study?
The study focuses on three jurisdictions: the People's Republic of China, England, and the United States of America.
What is the main goal of the research?
The goal is to assess the legitimacy and the appropriate scope of the "change of circumstance" doctrine while comparing how different legal systems handle contractual imbalances.
Which scientific methodology is employed?
The paper employs a comparative legal analysis, reviewing historical precedents, judicial interpretations, and legislative texts (such as the UCC in the US) in the selected countries.
What does the main body of the text cover?
It provides a country-by-country breakdown of how each jurisdiction developed its specific legal framework, citing relevant cases and codes.
Which keywords best characterize this document?
The work is defined by terms such as hardship, frustration, commercial impracticability, judicial discretion, and contract adaptation.
How does the Chinese approach differ from the English tradition?
While the English system often relies on the doctrine of frustration, which typically discharges a contract, China has developed judicial interpretations that allow for the modification or termination of contracts to maintain fairness.
What role does the "Uniform Commercial Code" play in the US context?
In the US, the UCC codifies the doctrine of commercial impracticability, allowing performance to be excused if the contract can only be completed at an excessive or unreasonable cost.
Why does the author argue that the doctrine is difficult to apply in practice?
The author notes that a lack of specific, uniform rules gives judges too much discretionary power, which can lead to unpredictable outcomes and potential unfairness in complex economic cases.
- Quote paper
- Ziya Baghirzade (Author), 2013, Change of Circumstance. Approach to the doctrine of "change of circumstance" in different countries and legitimacy of this doctrine, Munich, GRIN Verlag, https://www.grin.com/document/265961
