欧洲合同法的规则的有关问题.doc

THE LIMITS OF THE DUTY TO PERFORM IN THE PRINCIPLES OF EUROPEAN CONTRACT LAW
Richard Backhaus Richard Backhaus Dipl iur (Bonn), LL M (Edin), research assistant at the Institute of Roman parative Law, Bonn University.
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Abstract
The Principles of European Contract Law (PECL) contain two Articles limiting the duty to perform if performance has e more burdensome. On the one hand, Article 6:111 PECL, ‘Change of Circumstances’, is based on the idea of a clausula rebus sic stantibus and may lead to an adaptation of the contract by the court. On the other hand, it is Article 8:108 PECL, ‘Excuse Due to an Impediment’, excusing non-performance without giving the court the power to adapt the contract. This article analyses the scope of the provisions and their relationship critically, and investigates whether such a dichotomy, . two rules limiting the duty to perform with probably different results, is desirable in a future European private law. The author takes parative approach by looking at the sole concept of frustration in English and Scots Law on the one hand and a similar division in German law on the other.
Contents
A. Introduction
B. Article 8:108: ‘Excuse Due to an Impediment’
Prerequisites
Results
English law: Frustration
German law: Impossibility
C. Article 6:111: ‘Change of Circumstances’
Prerequisites
Results
English law: Frustration again
German law: Störung der Geschäftsgrundlage and impossibility
D. The relationship between Article 6:111 and Article 8:108 PECL
E. Conclusion
A. Introduction
The Principles o