ElectronicjournalofcomparatIveLaw,vol.8.1(march2004),<http://www.ejclorg/> (Storung der Geschafisgrundlage) and is- with regard to our issue - the most recently reformed Our comparison is a special one because it compares national legal rules and concepts, rules which are applied and have been applied over years, i.e. hard law, with a newly developed'soft law, which does not govern contracts unless the parties agree on it. Even though the rules differ totally from each other as regards legal nature, the comparison makes much sense. PECL is recognized as a kind of model code for European contract law, serving th the unification and modernisation of domestic contract law In add ition the summarise a common core of European contract law and thus have some similarity with the US Restatements. This common core' may, however, follow a national solution or may constitute a compromise; at least it should achieve results similar to the major legal systems and thus it has to take into account similar if not the same aspects B. Article 8: 108: 'Excuse Due to an Impediment' The first provision in the PECL capable of granting relief in the case of burdensome performance is Article 8: 108, which was drafted after Article 79 CISG. The underlying idea in the PECl is that the debtor is strictly liable for non-performance like in English law, i.e the debtor is liable as long as he is not able to show that his non-performance is excused whereas German law generally requires fault for any liability BI Prerequisites The provision only applies to imped iments subsequent to the conclusion of the contract 10 from French law 12 The non-performance is excused according to paragraph (I)on fou tes The whole situation must be one commonly described as force majeure, which origin conditions Firstly, there must be an impediment. Imped iment is not defined in the PECL themselves nor in their commentary. The examples given include a ship's sinking and a $313(1)3)BGB; it is probably better known under the old terminology of wegfall der Geschafisgrundlage; cf for the concept accord ingto the old law w Lorenz, Contract Modification asa Result of Change of Circumstances,, in R Zimmermann, S Whittaker(eds), Good Faith in European Contract Lau 2000), 357; K Zweigert, H Kotz, Introduction to Comparative Law, 3rd edn(1998), 518ff. Yet the legislator's aim was not to change the existing status of the doctrine; BT-Drucks 14/6040 <http:/dinbundestagde/btd/14060/1406040ndt,175f 9 In theory, the US Restatements rathersummarise the law as it is today, whereas PECL's aim is rather unification-ie. the future development of contract law -than restating current status. Yet the differences should not be overestimated; cfR Zimmermann, Konturen eines Europa ischen Vertragsrechts,(1995) Juristenzeitung 477, 478f Lando/ Beale, n 2, 379(comment B), a previously existing impediment is dealt with in Art 4: 103 Fundamental mistake as to Facts or la Lando/Beale, n, 379f(comment C) For force majeure, cf B Nicholas, "Force Majeure in French Law, in McKendrick(ed), n, 21Electronic Journal of Comparative Law, vol. 8.1 (March 2004), <http://www.ejcl.org/> 3 (Störung der Geschäftsgrundlage),8 and is - with regard to our issue - the most recently reformed. Our comparison is a special one because it compares national legal rules and concepts, rules which are applied and have been applied over years, i.e. ‘hard law’, with a newly developed ‘soft law’, which does not govern contracts unless the parties agree on it. Even though the rules differ totally from each other as regards legal nature, the comparison makes much sense. PECL is recognized as a kind of model code for European contract law, serving both the unification and modernisation of domestic contract law. In addition, the principles summarise a ‘common core’ of European contract law and thus have some similarity with the US Restatements.9 This ‘common core’ may, however, follow a national solution or may constitute a compromise; at least it should achieve results similar to the major legal systems, and thus it has to take into account similar if not the same aspects. B. Article 8:108: ‘Excuse Due to an Impediment’ The first provision in the PECL capable of granting relief in the case of burdensome performance is Article 8:108, which was drafted after Article 79 CISG. The underlying idea in the PECL is that the debtor is strictly liable for non-performance like in English law, i.e. the debtor is liable as long as he is not able to show that his non-performance is excused, whereas German law generally requires fault for any liability. B.I Prerequisites The provision only applies to impediments subsequent to the conclusion of the contract.10 The whole situation must be one commonly described as force majeure, 11 which originates from French law.12 The non-performance is excused according to paragraph (1) on four conditions. Firstly, there must be an impediment. Impediment is not defined in the PECL themselves nor in their commentary. The examples given include a ship’s sinking and a 8 § 313 (1)-(3) BGB; it is probably better known under the old terminology of Wegfall der Geschäftsgrundlage; cf for the concept according to the old law W Lorenz, ‘Contract Modification as a Result of Change of Circumstances’, in R Zimmermann, S Whittaker (eds), Good Faith in European Contract Law (2000), 357; K Zweigert, H Kötz, Introduction to Comparative Law, 3rd edn (1998), 518ff. Yet the legislator’s aim was not to change the existing status of the doctrine; BT-Drucks 14/6040 <http://dip.bundestag.de/btd/14/060/1406040.pdf>, 175f. 9 In theory, the US Restatements rather summarise the law as it is today, whereas PECL’s aim is rather unification - i.e. the future development of contract law - than restating a current status. Yet the differences should not be overestimated; cf R Zimmermann, ‘Konturen eines Europäischen Vertragsrechts’, (1995) Juristenzeitung 477, 478f. 10 Lando/Beale, n 2, 379 (comment B); a previously existing impediment is dealt with in Art 4:103, ‘Fundamental Mistake as to Facts or Law’. 11 Lando/Beale, n , 379f (comment C). 12 For force majeure, cf B Nicholas, ‘Force Majeure in French Law’, in McKendrick (ed), n , 21