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Ruhr-University Bochum Expert Windel Discussed Meaningless Payment Committment


On 17 September, 2019, Professor Peter A. Windel of Ruhr-University Bochum was invited to give a lecture on the initial impossibility of performance. The lecture was held in Room 708 of the Mingde Law Building, Renmin University of China.

Professor Windel first gave some background information about the initial impossibility of performance. First, the origination of the impossibility-of-performance doctrine can be traced back to the Roman Law period, during which the principle of “impossibility means no debt” was recognized. Second, Professor Windel pointed out a few reasons for the objection to the impossibility-of-performance doctorine. One of the reasons is that it is very difficult to determine an accurate time of when the goods are lost. Besides, most commodity transactions are related to obligatio generis. Impossibility of performance is possible only when all goods of that type are destroyed, and such a situation is undoubtedly very rare. Third, the history of Article 311a of the (current) German Civil Code was introduced by Professor Windel.

Professor Windel then turned to the question of how the current German Civil Code deals with meaningless promises of payment. First, Article 311a of the German Civil Code clearly upholds the validity of a contract that is impossible to perform, and intends to extend the application scope of contracts to include fortune telling. However, a contract may still be void if there are false expressions and a lack of true intent. Such a contract may also be void due to a violation of public policy: when the payer and the recipient have both violated a statutory prohibition or public policy, there is no restitution pursuant to Article 817 of the German Civil Code. Second, Professor Windel explained the resolution in the aspects of obligation of payment and obligation of reciprocal payment against delivery. Third, he discussed the compensation of damages stipulated in the second paragraph of Article 311a.

After that, Professor Windel talked about how to deal with the impossibility of performance in the context of Chinese civil law. Based on the content of the General Provisions of the Civil Law of the Peoples Republic of China, he analyzed that a contract that cannot be performed initially may be void due to false will, violations of public order and good morals, and even malicious collusion.

Attendants of the lecture included Dr. Sun Xianzhong, researcher of the Institute of Law of Chinese Academy of Social Sciences, Dr. Li Hao, associate professor of the Law School of Beihang University, Professor Zhu Yan, Dr. Zhu Hu, Dr. Xiong Bingwan, associate professors of Renmin University of China Law School, Dr. Jin Yin, assistant professor of Renmin University of China Law School. The forum was moderated by Professor Yao Hui of Renmin University of China Law School, and translated by Dr. Li Yunyang, a special associate researcher of the Law School of the East China University of Political Science and Law.

(Editor: KANG Bingguo, SHAN Wenjie, Chloe Shortall)