论履行不能

On Impossibility of Performance

履行不能乃比较法上的通行规则,各国均通过立法或判例加以确认。大陆法系一般将履行不能视为债务不履行的重要类型之,并附加可归责性的要求以平衡契约双方的利益。普通法由最初的严格责任发展到逐步承认各种类型的履行不能,将其视为免除继续履行义务的免责事由之一。我国合同法规定了法律不能、事实不能、金钱不能等履行不能之具体类型,还应通过解释论确立履行不能的可归责性要件。将事实不能解释为包含客观不能、经济不能、人身不能等类型。

The impossibility of performance belongs to the prevailing rules, and many countries always confirm it through legislation or cases. Continental Law system generally takes it as important type of debt nonperformance, and attaches accountability to balance the interests of both parties. However, Common Law gradually admits various types of impossibility of performance from the initial development of strict liability, and regards it as one of General Defenses to perform the obligation of the relief. Our Contract Law stipulates the provisions of the concrete types of the law impossibility, facts impossibility, money impossibility, which should also set important documents through interpretation. It is expected to take the impossibility of fact as objective impossibility, economy impossibility, and personal impossibility.