Nonperformance due to failure of the creditor to co-operate in performance of contract and the paradigm shift in the German law of obligations

2016 Fiscal Year Final Research Report

• Project/Area Number: 26780063
• Research Category: Grant-in-Aid for Young Scientists (B)
• Allocation Type: Multi-year Fund
• Research Field: Civil law
• Research Institution: Osaka City University
• Principal Investigator: Sakaguchi Ko 大阪市立大学, 大学院法学研究科, 准教授 (20508402)
• Project Period (FY): 2014-04-01 – 2017-03-31
• Keywords: 履行不能 / 履行請求権の限界 / 危険負担 / 債権者の責めに帰すべき事由による履行不能

Outline of Final Research Achievements

In the German Civil Code (BGB) from 1900, the generic concept of breach of contract was impossibilty. Whether the creditor is entitled to claim specific performance or not, depends on the fault of the debtor. Therefore the reason excluding specific performance corresponded to the reasons excluding liability for damages.
The German Civil Code from 2002, on the other hand, has a multilane concept of breach of contract. It distinguishes between delay, imperfect performance and impossibility. In case of impossibility the claim of the creditor to specific performance is excluded; nevertheless, there might be a claim of damages. Thus, the reasons for the exclusion of specific performance do no longer correspond to the reasons excluding the liability for damages. The new doctrine of impossibility required the introduction of new legal concepts, namely impossibility because of unreasonableness and the rules on change of circumstances.

Free Research Field

民法