It gives the court the “fair discretion” to directly intervene in the contractual relationship, so that the parties’ performance can adapt to the changes of the objective situation outside the contract.
The so-called “behavior basis” refers to the premise concept (expectation) of one party or the premise concept shared by many parties, which is expressed at the time of the conclusion of the transaction behavior, and the opposite party knew the importance of this premise concept but did not object at that time.
[2] at present, the “behavior basis theory” It has become a general theory in Germany.
（2） The theories and regulations related to the change of circumstances have different theoretical identities in different legal systems.
In order to rescue the parties from the dilemma of unbalanced performance, the situation change system came into being.
Subsequently, Larenz put forward the “theory of modified behavior basis”, which extended the “theory of loss of behavior basis” put forward by Altman.
It is the premise concept for the existence or occurrence of a specific situation on which the behavior intention can be constructed.
The standard of its practical application is that if the payment of the burden can be performed, but the payment of the burden is significantly more than the predetermined burden of the contract, it is solved by the “basic theory of transaction”.
[4] the conditions applicable to “contract failure” include: (1) the failure of the contract is unforeseen by both parties; (2) both parties have no fault in the process of contract failure; (3) the result of contract failure must make the agreement impossible to continue to perform.
It can be seen that the common law system The scope of “contract failure” is broader, including the content of force majeure.
He believed that the “behavior basis” is divided into “subjective behavior basis” and “objective behavior basis”.
It is reasonable and necessary to recognize the mandatory effect of the change of circumstances rule in the form of law..
If the “objective behavior basis” is lost, it may produce the adverse consequences of “failure to achieve the contract purpose” and “destruction of equivalence relationship”.
If the boundary scale of the actual performance of the parties is not adjusted according to the actual situation on which the performance of the construction contract depends, There will be unfair consequences that ordinary rational people can’t bear.
If the “subjective behavior basis” is lost, there may be “motivation error” and “lack of meaning” The latter is the objective basis for the existence of the contract, a realistic condition that must exist and independent of the parties’ subjective thinking in order to achieve the contract purpose pursued by all parties to the contract.
Starting from the objective basis, actual performance and actual situation of construction contract, this paper discusses the rationality and necessity of judicial application of change of circumstances rule in the trial practice of construction contract disputes.
If it is not for the needs of maintaining public interests and social order, it is difficult to challenge its authority of “freedom of will”.
Based on this, the parties suffering adverse effects due to the change of circumstances may unilaterally request to adjust the performance content of the contract or terminate the contract.
[5] the situation in China is that in the contract law (now invalid) during the signing period (around 1999), in view of the short time since China established the market economic system, the concepts of “strict adherence to contract” and “autonomy of will” did not go deep into the hearts of each market transaction subject, the contract law (now invalid) The change of circumstances rules are not determined in the form of law, but leave room for one party to apply the change of circumstances rules in the form of judicial interpretation [6], but it also stipulates that “when applying the ‘change of circumstances principle’ to courts at all levels, it must be correctly understood and carefully applied.
If it is necessary to apply, it shall be reported to the higher court for review” [7] Nowadays, China’s market economic system has been established for more than 40 years, and the principle of honesty and trustworthiness has become a firm belief in the commercial market in many cases.
For example, the purchase must pay a much higher price, or the treatment payment depreciates due to the inflation of goods.
[1] Therefore, under the strong barrier constructed by the principle of autonomy, the rule of change of circumstances is like a sharp sword, which goes straight into the weakness of the principle of autonomy – fair consideration, and then breaks through the shackles of autonomy.
Focusing on the judicial application of the rule of change of circumstances in the trial practice of construction contract disputes, the construction activities of construction projects have many participants, long span cycle, rich and complex performance contents and incalculable related risks, which determines that the adverse factors restricting the complete performance of construction contracts are numerous and complex, For example, the parties refuse to perform, the parties do not fully perform, the parties cannot perform, changes in circumstances, force majeure, etc.
However, in view of the fact that the rule of change of circumstances is a challenge and breakthrough to the principle of autonomy of will, and based on the reality that China’s good faith system is imperfect, the court often takes a conservative attitude in the face of the litigation claims or defenses issued by the litigation subject according to the principle of change of circumstances and does not support the parties’ claims on the application of the rule of change of circumstances.
[3] in the common law system, the theoretical basis of change of circumstances comes from “failure of the contract” (frustulation of contract) rules, the reasons for the failure of the contract include: (1) the loss of the subject matter not due to the fault of the parties; (2) the performance of the contract became illegal due to the outbreak of war; (3) the government issued an injunction to prohibit the performance of the contract; (4) after the contract was signed, the situation changed fundamentally, resulting in the loss of the foundation of the contract.
It can also be said that the rule of change of circumstances is a system based on the game equilibrium between the principle of freedom of contract and the principle of fairness and justice.
The principle of autonomy of will requires that the parties who make a unanimous expression of will strictly abide by the content of the agreement, be strictly bound by it, and shall not be abandoned or changed at will.
The conclusion of the construction contract of the construction project places too much emphasis on “risk distribution”, and its performance also depends too much on the stability of its external environment and objective foundation, but these two are often changeable and unpredictable.
Continuing to perform the contract according to the original agreement on the basis of such change will have unfair and improper consequences for one party, resulting in the inability of the parties to achieve the purpose of the contract.
A party who suffers an adverse interest due to a defective basis of conduct (lack at the beginning or subsequent loss) has the right to terminate the contractual relationship.
However, the parties who respect the principle of autonomy of will often lack the in-depth consideration of fairness and justice and the ability to predict future risks, and the external environment and objective conditions impacting the performance of the contract are divorced from the control range of the parties, which makes them fall into the dilemma of consideration imbalance.
There is a certain ideological basis for recognizing the coercive force of change of circumstances; and the objective changes of the international economic situation are changeable and changeable, such as abnormal devaluation of currency and The change of supply-demand relationship leads to inflation and the government’s ban, which has far exceeded the foresight and adaptability of the parties to the contract.
1、 Overview of the rules of change of circumstances (I) the meaning of change of circumstances change of circumstances refers to the change of the external environment, objective basis or realistic conditions on which the contract is established, maintained and performed in the time dimension from the date of establishment and effectiveness of the contract to the completion of contract performance, and the change is beyond the scope of the subjective will of the parties It cannot be attributed to both parties and can not be foreseen by the parties.
In Germany, the view of dealing with the problem of situation change originated from Altman’s “behavior based theory”, also known as “transaction based theory”.
The former constitutes the motivation of the parties to conclude the contract.
In the field of civil private law, “freedom of contract”, “strict observance of contract” and “contractual justice”, that is, the rules of autonomy of will, have a strong dominant position.
Among them, in view of the above characteristics of too many restrictive factors of the construction contract of the construction project, there are many cases that the construction contract of the construction project is difficult to perform due to the change of circumstances, which constitutes the beginning of disputes between the employer and the contractor.
