By Hüseyin Can Aksoy
This e-book offers an research of the remedy of impossibility in glossy deepest legislations. the writer explains the legislation of impossibility in German, Swiss and Turkish legislation with a comparative research of the topic below (i) the United international locations conference on foreign Sale of products (CISG), (ii) UNIDROIT ideas of foreign advertisement Contracts (PICC), (iii) rules of ecu agreement legislation (PECL sometimes called the Lando-Principles), (iv) Draft universal body of Reference (DCFR) and (iv) universal eu revenues legislations (CESL).
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Additional info for Impossibility in Modern Private Law: A Comparative Study of German, Swiss and Turkish Laws and the Unification Instruments of Private Law
137. “Performance is objectively impossible and therefore cannot be demanded or enforced (§ 275 paragraph 1 BGB), if, under the laws of nature, or existing knowledge of science and technology it cannot be absolutely provided. ” BGHZ 188, 71, 73. According to Fehre, sometimes the obligation arising from the contract may be nonsensical according to the views of third parties at the time of contract formation. For instance, an obligation to convert a car into an airplane by using magical powers is a nonsensical obligation.
104 Staudinger/Lo¨wisch, § 275, Rdnr. 100. 105 BeckOK/Unberath, § 275, Rdnr. 55. 106 Canaris, JZ 2001, 499, 502; Fehre, p. 46. 107 Mitzkait, p. 51–52. 108 Mitzkait, p. 51; Fehre, p. 47; Mu¨Ko/Ernst, § 275, Rdnr. 87. 109 Canaris, JZ 2001, 499, 502; Fikentscher/Heinemann, § 43 II 3, Nr. 397. 110 Mu¨Ko/Ernst, § 275 Rdnr. 88. 111 Huber/Faust, Section 2, Nr. 50; Fehre, p. 49. 103 24 2) Treatment of Impossibility in German Law The analysis of gross disproportion requires making a cost-benefit analysis between the expenses to be made for performance and the creditor’s interest in performance.
35; Staudinger/Otto, § 326, Rdnr. B 24; PWW/ Schmidt-Kessel, § 275, Rdnr. 6; Kuhlmann/Nauen, p. 48; Klausch, p. 183; Mu¨Ko/Emmerich, § 275, Rdnr. 46; BeckOK/Unberath, § 275, Rdnr. 34; Jauernig, § 275, Rdnr. 14; Da¨ubler, p. 57; Westermann/Bydlinski/Weber, § 7 II 2, Rdnr. 7/8; Palandt/Gru¨neberg, § 275, Rdnr. 11; Schwenzer, Obligationenrecht, Nr. 04; Fo¨rster, Nr. 211; Blank, p. 49; Zerres, p. 135; Hirse, in: Tonner/Willingmann/Tamm, § 275, Rdnr. 15; Maile-Zinser, p. 14. 50 The burden of proof regarding the length of the term of impossibility is carried by the debtor.