情势变迁：一个比较调查【外文翻译】

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1、文献翻译 原文： Rebus sic stantibus: A Comparative Survey Author： ziz T Saliba LLM Subject: European Comparative Law (Other articles) Contracts Law and legislation (Other articles) Introduction: The objective of this article is to briefly analyze the unforeseeability doctrine in Civil Law countries (where

2、it is known as a rebus sic stantibus clause or by its French name ), from its beginning to its current stage of development - in a comparative perspective. As discussed below, there are three main modern approaches in the Civil Law countries, to the general application of the rebus sic stantibus doc

3、trine. Some countries have rejected it； others have adopted it through court-constructed provisions in their codes and yet others have expressly adopted it in their coded legislations. The author will also compare the rebus sic stantibus doctrine with some similar doctrines, which are available in C

4、ommon Law countries. Pacta sunt servanda: The Sanctity of Contracts: The cornerstone of contract law is freedom of contract or the principle of autonomy, which means that when observing the proper legal restrictions, people can engage in whatever contractual relations they choose； and once they have

5、 decided to do so, they are bound by their contract. The binding strength of contracts has religious roots. The Old Testament, which is sacred to Christianism as well as to Judaism asserts:When a man makes a vow to the LORD or takes an oath to obligate himself by a pledge, he must not break his word

6、 but must do everything he said. In the New Testament, Jesus also commands his followers to honor their word: Let your yes be yes, and your no, be no. A similar reverence for agreements can be found in traditional Muslim law. Chapter 5 of the Quran, sometimes called the Chapter of Contracts, begins

7、with an appeal: O ye who believe! Fulfill (all) obligations. This notion is also found in Roman law: pacta sunt servanda ex fide bona: agreements must be fulfilled in good faith. Rebus sic stantibus: A limitation to this contractual sanctity was elaborated by the canonists of the twelfth and thirtee

8、nth century. According to the canonists, the Latin tag is: contractus qui habent tractum succesivum et depentiam de future rebus sic stantibus intelliguntur. This may be freely translated as: contracts providing for successive acts of performance over a future period of time must be understood as su

9、bject to the condition that the circumstances will remain the same. Rebus sic stantibusshould not be confused with force majeure. Force majeure excuses the obligor to perform only if there is an irresistible (and unforeseeable) obstacle. In force majeure, the performance must be physically or legall

10、y impossible and must not be merely more onerous to perform. Thus, in a nutshell, the fundamental difference is that, unlike rebus sic stantibus, force majeure does not include economic hardship nor even economic impossibility. Rebus sic stantibuswas first applied by the ecclesiastical courts, espec

11、ially when there was a suspicion of usury. It was subsequently adopted by other courts and jurists and this concept thus became widely accepted by the end of the XVIII century Obviously, as in most historical changes to the law, the acceptation of a particular concept in law gradually faded over tim

12、e. As Prof. Rosenn explains:as early as the fifteenth century, the popularity of the theory of rebus sic stantibus had begun to wane, largely because of protests from burgeoning commercial interests against the climate of transactional insecurity produced by the theorys widespread application. By th

13、e end of the eighteenth century, pacta sunt servanda reigned supreme, and the theory of rebus sic stantibus had been relegated to the doctrinal scrap heap. Contributing to its demise were the rise of scientific positivism, and the increasing emphasis on individual autonomy and liberty of contract. L

14、iberalism, which was the predominant philosophical stream in the eighteenth century, brought new ideas incompatible with the harsh and restrictive application of rebus sic stantibus as provided by the canonists. Pacta sunt servanda, on the other hand, was perfectly coherent with the concept of lasse

15、 faire, lassez passe. Therefore, the codes that were enacted in this period (Napoleons code and the Italian Civil Code) did not and would not adopt rebus sic stantibus. After the outbreak of World War I, European jurists had to search for a theoretical justification for excusing promissors from cont

16、racts whose performance had become extremely burdensome. Consequently, Rebus sic stantibus was again recycled, under different names and legislative enactments of various countries, together with their concomitant underlying justifications, which is briefly described below. Rebus sic stantibushas no

17、t been expressly adopted in Common Law countries. Nevertheless, Common Law courts managed to achieve very similar results to those of the countries that adopted rebus sic stantibus through three overlapping doctrines that will be briefly discussed: Impossibility: As far as we can trace, the common l

18、aw rule was pacta sunt servanda. Impossibility was no excuse and even though the court would not grant specific performance, the breaching party was still liable for damages. In the seventeenth-century case of Paradine v. Jane, a lessee sought to be excused from paying rent because a German Prince,

19、by name Rupert, an alien born, enemy to the King and kingdom, ousted him from the land, so that he could not take income from it. In a dictum that was to gain far-reaching acceptance in the Common Law world, the Court of Kings Bench declared that:when the party by his own contract creates a duty or

20、charge upon himself, he is bound to make it good, if he may, notwithstanding any accident by inevitable necessity, because he might have provided against it by contract. And therefore if the lessee covenants to repair a house, though it be burnt by lightning, or thrown down by enemies, yet he ought

21、to repair it . The only exceptions to this strict view that impossibility is no excuse were supervening illegality, death and disability. Later, another exception was formulated in Williams v. Lloyd, W.Jones . This was a case which concerns the destruction of the subject-matter of the contract. The

22、court held that that a bailees duty to return a horse was discharged when, without the bailees fault, the horse died, because that is become impossible the act of God. However, Taylor v. Caldwell is deemed to be the fountainhead of the Common Law doctrine of impossibility. Taylor contracted with Cal

23、dwells music hall for performances on four days, in return for payment of 100 pounds a day. The hall was accidentally destroyed by fire less than a week before the performance. Taylor then sued Caldwell for breach of contract. Taylor claimed as damages the expenses he had incurred in preparing for t

24、hose performances. The Court of Kings Bench ruled that Caldwell was excused because: looking at the whole contract, we find that the parties contracted on the basis of the continued existence of the Music Hall at the time when the concerts were to be given； that being essential to their performance.

25、 Frustration: The common laws rigid Pacta sunt servanda rule persisted well for a long time. Sir George Jessel, M.R., in 1875 held that:If there is one thing which more than another public policy requires it is that men of full age and competent understanding shall have the utmost liberty of contrac

26、ting, and that their contracts when entered into freely and voluntarily shall be enforced by Courts of Justice. This strict view, however, was attenuated by the doctrine of frustration. The modern formulation of the doctrine of frustration can be found in the decision of the House of Lords in Davis

27、Contractors Ltd. v. Fareham U.D.C, since 1956. Lord Radcliffe stated that:frustration occurs whenever the law recognizes that without default of either party, a contractual obligation has become incapable of being performed because the circumstances in which performance is called for would render it a thing radically different from that which was undertaken by the contract. Non haec in foedera veni. It was not this that I promised to do.This conception has been accepted by Australian,