ElectronicjournalofcomparativELaw,vol.8.1(march2004),http://www.ejclorg THE LIMITS OF THE DUTY TO PERFORMIN THE PRINCIPLES OF EUROPEAN CONTRACT LAW Richard Backhaus Readers are reminded that this work is protected by copyright. While they are free to use the ideas expressed in it, they may not copy, distribute or publish the work or part of it, in any form, printed, electronic or otherwise, except for reasonable quoting clearly indicating the ource. Readers are permitted to make copies, electronically or printed, for personal and classroom use Abstract The Principles of European Contract Law(PECL) contain two Articles limiting the duty to perform if performance has become more burdensome. On the one hand, Article 6: 1 11 PECL, Change of Circumstances,, is based on the idea of a clausula rebus sic stantibus and may lead to an adaptation of the contract by the court. On the other hand, it is article 8: 108 PECL, Excuse Due to an Imped iment, excusing non-performance without giving the court the power to adapt the contract. This article analyses the scope of the provisions and their relationship critically, and investigates whether such a dichotomy, i.e. two rules limiting the duty to perform with probably different results, is desirable in a future European private law The author takes a comparative approach by looking at the sole concept of frustration in English and scots law on the one hand and a similar division in german law on the other Contents A. Introduction B. Article 8: 108: Excuse Due to an impediment B I Prerequisites B. I Results B. l English la: Frustration B IV German lanv: Impossibility C. Article 6: 111: Change of Circumstances C I Prerequisites C. I Results C III English law Frustration again CIV German law: Storung der Geschaftsgrund lage and impossibility Richard Backhaus Dipl iur(Bonn), LL M(Edin), research assistant at the Institute of Roman and Comparative Law, Bonn UniversityElectronic Journal of Comparative Law, vol. 8.1 (March 2004), <http://www.ejcl.org/> 1 THE LIMITS OF THE DUTY TO PERFORM IN THE PRINCIPLES OF EUROPEAN CONTRACT LAW Richard Backhaus1 Readers are reminded that this work is protected by copyright. While they are free to use the ideas expressed in it, they may not copy, distribute or publish the work or part of it, in any form, printed, electronic or otherwise, except for reasonable quoting, clearly indicating the source. Readers are permitted to make copies, electronically or printed, for personal and classroom use. Abstract The Principles of European Contract Law (PECL) contain two Articles limiting the duty to perform if performance has become more burdensome. On the one hand, Article 6:111 PECL, ‘Change of Circumstances’, is based on the idea of a clausula rebus sic stantibus and may lead to an adaptation of the contract by the court. On the other hand, it is Article 8:108 PECL, ‘Excuse Due to an Impediment’, excusing non-performance without giving the court the power to adapt the contract. This article analyses the scope of the provisions and their relationship critically, and investigates whether such a dichotomy, i.e. two rules limiting the duty to perform with probably different results, is desirable in a future European private law. The author takes a comparative approach by looking at the sole concept of frustration in English and Scots Law on the one hand and a similar division in German law on the other. Contents A. Introduction B. Article 8:108: ‘Excuse Due to an Impediment’ B.I Prerequisites B.II Results B.III English law: Frustration B.IV German law: Impossibility C. Article 6:111: ‘Change of Circumstances’ C.I Prerequisites C.II Results C.III English law: Frustration again C.IV German law: Störung der Geschäftsgrundlage and impossibility 1 Richard Backhaus Dipl iur (Bonn), LL M (Edin), research assistant at the Institute of Roman and Comparative Law, Bonn University