Clausula Rebus Sic Stantibus[216]

The clausula rebus sic stantibus is an implied condition according to which a contract is binding only as long and as far as matters remain the same as they were at the time of conclusion of the contract.

¹⁽¹⁶ Klaus Luig, 'Die Kontinuität allgemeiner Rechtsgrundsätze: Das Beispiel der clausula rebus sic stantibus', in Zimmermann, Knütel, and Meincke (n. 26) 171 ff.

¹⁰⁷ On the history of the clausula rebus sic stantibus, see Law of Obligations (n. 25) 579 ff.; Ralf Kobler, Die 'clausula rebus sic stantibus' als allgemeiner Rechtsgrundsalz (1991); Michael Rummel, Die 'clausula rebus sic stantibus': Eine dogmengeschichtliche Untersuchung unter Berücksichtigung der Zeil von der Rezeption int 14. Jahrhundert bis zum jüngeren Usus modernus in der ersten Hälfte des 18. Jahrhunderts (1991); Klaus l.uig, 'Dogmengeschichte des Privatrechts als rcchtswissenschaftliche Grundla­genforschung*, (1993) 20 Ins Commune 193 ff. was predominantly hostile to this 'hackneyed little phrase';^{106 * [218] [219]} it did not suit the spirit of a time when freedom of contract, economic liberalism, and certainty of law reigned supreme. As long as the performance of a contrac­tual promise had not become impossible it had to be rendered. Thus, it is not surprising that the BGB refused to accept a general rule dealing with the problem of changed circumstances.¹¹⁾⁹

On the other hand, however, the BGB was enacted at a time when the social and economic conditions underpin­ning the liberalism of nineteenth-century vintage had begun to change.

Of course, it was recognized that the BGB had rejected the clausula; nevertheless, 'it had to be examined whether in an individual case the parties might not have intended to grant one or the other of them a right to withdraw from the contract on account of a change of circumstances'.¹¹³ This was in 1902. In 1905 such right of withdrawal was granted first in an individual case (on the basis of an extensive inter­pretation of the exceptional situations where the BGB had given effect to a change of circumstances [§§ 321, 610 BGB] and of considerations of good faith)¹¹⁴ and then even with regard to an entire class of contracts (contracts of insur­ance).¹¹⁵ The latter case, incidentally, contained the startling pronouncement that the 'general rules of private law cannot be considered as the proper point of departure for the decision to be taken';¹¹⁶ the Court based its ruling on the 'nature of the contract'. In a decision of 1906 the Imperial Court rejected Windscheid's presupposition doctrine,¹¹' thus itself presupposing that in principle it was entitled to consider, and possibly even accept, a doctrine not contained in the BGB.^11S But the clausula was on the advance.

The transition from an ever increasing number of excep- repayment is endangered'), § 779 BGB ('A contract whereby the dispute or the uncertainty of the parties concerning a legal relationship is ended by way of mutual concession (compromise] is invalid if the state of affairs regarded as essen­tial according to the terms of the contract do not correspond with the actual facts, and if the dispute or the uncertainty would not have arisen if the state of affairs had been known’).

^1,3 RGZ 50, 255 (258); this is based on a statement contained in ’Motive', in Mugdan (n. 27) 109. In the case under consideration, the Imperial Court was able to achieve a satisfactory result by granting a claim for damages based on § 326 BGB (morn debi loris).

¹¹⁴ RG, 1905 /IV 168. ^1,5 RGZ 60, 56 (62 f.).

¹¹⁶ RGZ 60, 56 (58). ^1,7 RGZ 62, 267 (267 f.).

¹¹⁸ Luig (n. 106) 180 f. ^1,9 See the references ibid. 181 ff. tions to a new principle occurred in 1920 when the Imper­ial Court asserted that the performance of a contractual obligation could no longer be demanded, if as a result of a complete change of circumstances it had become entirely different from the one originally contemplated and intended by the parties. The plaintiff's claim was regarded as 'justified from the point of view of the clausula rebus sic stantibus' which had now 'openly manifested itself' in the Code.^[223] This decision was hardly a sensation:^[224] in a long line of cases the Imperial Court had prised open a window in the doctrinal edifice of German private law through which the clausula was able to make its re-entry.^[225]

2.