Fundamental change of circumstances and the principle of 'causa finalis'

[摘要] ENGLISH ABSTRACT:On the basis of a comparative analysis of the case law in Germany, England and South Africadealing with fundamental change of circumstances, it is submitted that the underlyingprinciple of this problem area is the idea of frustration of the contractual purpose (causafinalis). The problem of fundamental change of circumstances is directly connected withbasic issues of legal theory such as the dichotomy between legal certainty and substantivejustice, the role and limits of interpretation, the concretisation of principles, the adjudicationof interests and the problem of value-judgements in the law which are of immediate influenceon the understanding of the problem by judges and legal commentators. A broad perspectiveon the topic is necessarily indicated hereby.The thesis therefore starts off with an account of the role of purpose (causa finalis) in thehistory of legal philosophy, with a focus on developments in Germany. The continuingrelevance of Aristotelian-Thomistic legal thinking is emphasized. The German and Englishcase law dealing with fundamental change of circumstances is analyzed in an analogousmanner. An account of the history and development of the doctrines dealing specifically withfundamental change of circumstances is given: the clausuIa rebus sic stantibus of the iuscommune, the doctrine of WegJall der Geschaftsgrundlage in Germany and the doctrine offrustration of contract and common mistake in England. The crucial elements of the approachof the courts are restated. The positions of the two most influential German legal authorsinvolved on opposite sides of the debate concerning the doctrine of WegJall derGeschaftsgrundlage are discussed. At the end of the discussion of English case law, theapproach of the English courts is compared with that of their German counterparts, providinga basis for the development of the author's understanding of the concept causafinalis.Notwithstanding the fact that South African law does not recognize a doctrine dealingspecifically with fundamental change of circumstances, and in spite of dicta to the effect thatthe English doctrine of frustration of contract is not part of South African law, it is submittedthat the doctrine of frustration of contract has nevertheless strongly influenced the SouthAfrican law of supervening impossibility and supposition, and has arguably become part andparcel of it. Likewise, cases of frustration of the contractual purpose due to a fundamentalchange of circumstances have been dealt with by means of other doctrinal devices such ascommon mistake. It is submitted, finally, that the famous and controversial issue of the roleof causa in South African law should be reconsidered, since it may contribute to theunderstanding of the notion of contract, and assist in overcoming the current doctrinal crisisof the theory of contract.

[发布机构] Stellenbosch University