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63 B.U. L. Rev. 1039 (1983)
Judicial Revision of Frustrated Contracts: Germany

handle is hein.journals/bulr63 and id is 1047 raw text is: BOSTON UNIVERSITY LAW REVIEW JUDICIAL REVISION OF FRUSTRATED CONTRACTS: GERMANYt JohN P. DAWSON* Those who have lived in the twentieth century should have learned to live on the brink of disaster. In this respect there is reason to envy those who lived a century ago. Then the recollection of other disasters that had brought massive destruction to mankind seemed to be fading as there developed an expectation of lasting order and peace. One symptom of this was that in their law of contract only the most limited means were provided for dealing with disruptions or distortions through unexpected events. In Germany, with which this essay will be concerned, the draftsmen of the Civil Code, who did their work in the 30 years prior to 1900, deliberately cut back sharply the provisions for unforeseen change of conditions that had been recognized earlier in German law. They imposed strict limits very similar to those that had for long been considered sufficient in English law. Thus in both legal systems the troublesome problems concerned with discharge of contracts through changed conditions were left over unresolved to provoke contention in this century. In this article and its successor, which is to discuss the same problems in American law, account will be taken of the growth of ideas on these broader themes but attention will be centered on a much narrower question. The traditional remedy, in both German and Anglo-American law, where unfore- seen change has precluded further enforcement of a contract, has been a discharge of both parties, coupled, where needed, with restitution of any performance that had already been rendered. Can there be an alternative in which some court revises those terms that in the new and unexpected situation operate to produce the heaviest burden or the greatest distortion in the values exchanged? The word most commonly used in Germany to describe such correctives is adjustment (Anpassung). It is a word that has no settled content but when used in this context it usually means a substan- tive change in contract provisions imposed by court order, as by a provision that a buyer must pay an increased price to match an unforeseen rise in the seller's costs. The readiness with which modern German courts undertake to make compulsory changes of this kind will be shown in due course to be one t © 1983 by John P. Dawson. Professor Emeritus, Harvard Law School. 1039 VOLUME 63 NUMBER 5 NOVEMBER 1983

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