The death of a party to the contract constitutes a condition of force majeure

   The death of the contracting party is an objective event. If it meets the requirements of force majeure and has the applicable preconditions, it can also constitute force majeure. The breach of contract caused by the two parties may be partially or completely exempted from liability.

　　case

　　On December 15, 2003, Shanghai Yuanzhong Jing'an Real Estate Co., Ltd. (hereinafter referred to as Yuanzhong Company) and Yan Dingyi signed a pre-sale contract for commercial housing, and sold to the Yanding 1st, 23rd Floor, No. 10, Lane 269, Changning Road, Jing'an District, Shanghai. A set of 03 room houses. However, due to the strictness of one person, the house delivery procedures have not been completed, resulting in the company having to pay property fees for the house. In April 2007, Yuanzhong Company learned that Yan Dingyi had died in a car accident in the United States. He twice issued a lawyer's letter to Yan Bingyi's legal heirs Yang Bihui and Yan Deyuan, urging the two to go through the relevant procedures and pay the corresponding amount, but two The heir has been handled in the future. Yuanzhong Company appealed to the Jing'an District People's Court in Shanghai, requesting the order of Yang Bihui and Yan Deyuan to continue to perform the procedures for the delivery of the house and the transfer of property rights in the “Shanghai Commercial Housing Presale Contract” with Yan Dingyi; paying the housing area to the plaintiff Looking for a replenishment of 8848 yuan, the property fee of 31169.88 yuan; to the plaintiff to pay property fee liquidated damages, housing area to find replenishment liquidated damages totaling 16,552 yuan.

　　referee

　　The Jing’an District People’s Court of Shanghai held that, in accordance with the contract, the plaintiff should notify Yan Dingyi of the formalities for the delivery of the house 10 days before the date of delivery. Although the plaintiff issued a written notice on May 17, 2005, at this time Yan Dingyi has died, and a written notice of a dead legal subject cannot be regarded as a valid notice. However, after investigation, the contractual agreement between the two parties was due on May 31, 2005. On January 15, the same year, Yan Dingyi died. At this time, neither party had any delay in performance. Since the death of Yan Dingyi is not intentional by the person or the plaintiff, it cannot be foreseen or avoided. While Yan Dingyi is not a resident of China, the plaintiff has no way of knowing his death and the communication of the heirs. The communication obstacles caused by death cannot be overcome. . Therefore, the death of Yan Dingyi is an objective situation that both parties can not foresee, cannot avoid and cannot overcome, and is a force majeure.

　　After the judgment of the first instance, the plaintiff refused to accept the appeal and appealed to the Shanghai Second Intermediate People's Court, and then withdrew the appeal. The first-instance judgment has entered into force.

　　Comment

　　The application of the force majeure rule in this case is mainly in the following three aspects:

　　1. Whether there is a precondition for the application of force majeure In this case, the death of the contracting party occurs after the contract is signed, and the time limit of the force majeure principle is satisfied before the contract is fulfilled; the death of the party due to the accident is not a common risk to the contract itself, and the principle of force majeure is satisfied. The rare risk premise; when the time of death occurs, there is still a period of time from the date of delivery, neither of them has delayed implementation, and the prerequisite for fulfilling the principle of force majeure.

　　2. Whether the death of the contracting party is unpredictable There are many reasons for death, such as accidents, illness, intentional killing by others, suicide, etc. Accidents and intentional killing by others should be unforeseen, but death from illness cannot be generalized. The party involved in the case was killed in a car accident, which he could not foresee, and there was no intentional pursuit of intention. It was a typical unforeseen cause of death.

　　3. Whether the death of the contracting party is inevitable and insurmountable In the course of hearing the case, the death of the contracting party is inevitable and the parties have no objection. But whether the death of the contracting party is “unable to overcome”, there is a big dispute between the two parties:

　　One view is that the death of the contracting party can be overcome because the property rights in the contract can be the subject of succession. As long as the parties to the contract have heirs, the contract will not be executed due to the death of one party. Because in accordance with the relevant provisions of the inheritance law, legal inheritance begins on the day of the death of the heir. That is to say, on the day of the death of the contracting party, the rights and obligations on the contract have been inherited by its heirs, and there will be no shortage of the parties in the contract, and the performance can still be continued. Therefore, as long as the party to the contract of death still has an heir, it cannot constitute force majeure.

The court held that although the contract party’s death, its debts and debts arising from the contract could be inherited by its heirs. However, from a fair and reasonable point of view, it cannot be directly determined that the contract can continue to be performed. Because the heir does not necessarily know the existence of the contract, and the opposite party of the contract may not be able to grasp the information of the heir. The lack of communication channels makes the contractor’s death and the difficulties brought by the contract performance cannot be avoided. At the same time, since the deceased died suddenly, his heirs could not know the existence of the purchase contract. Therefore, the court found that the principle of force majeure could be applied and the liability of the contracting parties for breach of contract was waived.