| 英文摘要 |
Article 246 of Taiwan’s Civil Code stipulates that“If the prestation of a contract is impossible, it is void,”which follows the provisions of Article 306 of the old German Civil Code. This provision is influenced by the Roman legal maxim:“Impossibilium nulla est obligatio”. However, It remains questionable whether this legal maxim can lead to the conclusion that where it is not possible objectively to perform the contract at the time of its conclusion, it is void. This article first deals with the reasons for the formation of this norm and the legal historical background. Then, by observing the development process of German civil law, especially in the course of modernization of German obligation law, it can be deduced that the principle of“If the prestation of a contract is impossible, it is void”is obsolete, and the contract is valid instead. The second part of the article explores the core reasons that influence German legislators to change their legal policies and legal theories. Finally, the article draws a path for the paradigm shift of the legal system of the impossibility of performance in the German Civil Code, as a way to reflect on the problems faced by the initial impossibility in Taiwan. And for the reconstruction of the modernization of Taiwan’s civil law, this article provides an appropriate suggestion to establish a modern system of the impossibility of performance and compensation instead of performance. |
