Termination of an obligation due to impossibility of its performance

The impact of impossibility of performance on dynamics of an obligation is considered in this article. The author refutes a wide-spread viewpoint that impossibility of performance for which one of the parties is responsible leads to the transformation of a regulatory obligation into a protective one. This wrong viewpoint is based on the literal interpretation of Article 416(1) of the Russian Civil Code (the RCC further on) that impossibility of performance leads to termination of an obligation only if it is caused by the circumstances for which one of the parties is responsible. The author argues that impossibility of performance causes termination of a contract (regulatory) obligation in all cases, despite the fact that one of the parties is responsible for the occurrence of impossibility of performance. However, if one of the parties is responsible, a contract (regulative) obligation terminates but liability (protective) obligation arises. Arguments in favor of this position are based on the study of correlation between the institute of obligations' termination and institute of civil liability, on analysis of Article 381(1) and Article 405(1) of the RCC, as well as on the interpretation of the right to defense not as one of the elements of any legal right, but as an independent legal right being realized within the framework of a liability (protective) obligation. The latter arises in each case of a breach of an obligation and can't be the result of transformation of a contract (regulatory) obligation. The author's point of view that the impossibility of performance results in the termination of an obligation regardless whether a party is responsible for it coincides with the usually wrongly interpreted position of the Presidium of the Supreme Commercial Court of the Russian Federation stated in its Information Letter № 104 dated December 13, 2005. Identifying the reasons for incorrect wording of Article 416(1) of the RCC, the author refers to the drafting history of this provision and supposes that the latter was borrowed from the German Civil Code (the Burgerliches Gesetzbuch, the BGB further on). It is stressed in the present work that the provision of the BGB which was a prototype of Article 416(1) of the RCC was revised during the reform of the German civil legislation that was over in 2001. This, however, is still not taken into account by Russian legislators who, as it can be seen in the Draft Federal Law № 47538-6 "On Amendments to the First, Second, Third and Fourth Parts of the Civil Code of the Russian Federation and Certain Legislative Acts of the Russian Federation" have no intention to eliminate the criticized in this article causation between the termination of the obligation by impossibility of its performance and the fact whether one of the parties is responsible for the occurrence of impossibility of performance.

Keywords

Authors

References