Correlation between economic and practical impossibility of obligations fulfillment
The article is devoted to the problem previously unexplored in the Russian civil doctrine of correlation between the concept of economic impossibility of performance of the obligations, created in the beginning of the 20th century, and the phenomenon of practical impossibility of fulfillment of the obligations, which was developed in the 1990s in the uniform civil law and later borrowed by many national legal systems (including Germany). The aim of the present research is to find out how much this innovation helps the regulation of the contractual relations and if it might be useful for the Russian civil doctrine and legislation, which is currently under the process of reformation. Learning the proceedings of the representatives of the Pandect Law School and the contemporary studies of German Law on obligations, making deep analysis of lex mercatoria (the UNIDROIT Principles of International Commercial Contracts 2010, the Principles of European Contract Law 2002, the Draft. Common Frame ofReference 2009) and Russian civil legislation, revealing the origins of the concepts of the economic and practical impossibility of fulfillment of the obligations, the author comes to a conclusion that the scopes of the concepts of economic and practical impossibility of fulfillment coincide to a certain extent. The author believes that the provisions on practical impossibility of fulfillment in the form they exist in German civil law and lex mercatoria cannot be recommended for the reception by Russian civil legislation, as it will lead to a conflict of the transplanted provisions with Art. 451 of the Russian Civil Code (RCC) and, therefore, to the problems in law enforcement. In the article it is recommended to provide gross disproportion between the expenses and efforts of the debtor, which are necessary for fulfillment and the interest of the creditor in this fulfillment, i.e. practical impossibility of fulfillment of the obligations, which is a type of hardship of fulfillment, as an independent basis for modification or termination of a contract by the court applicable regardless of whether practical impossibility occurred (before or after obligation arose). In this connection, the author proposes to add the following rule to Art. 451 (2) RCC: ''A contract may also be modified or terminated at the request of an interested party, if its specific fulfillment requires from the obliger expenses and efforts which, taking into account the subject matter of the obligation and the requirements of good faith, are grossly disproportionate to the interest in fulfillment of the obliged''.