FRUSTRATION OF CONTRACT IN COMPARATIVE LAW AND IN THE NEW GREEK CIVIL CODE OF 1946 (Article 388)
| Date | 01 January 1948 |
| Author | Pan. Zepos |
| Published date | 01 January 1948 |
| DOI | http://doi.org/10.1111/j.1468-2230.1948.tb00070.x |
FRUSTRATION
OF
CON'L'RAC'I' IN
COMPAR.A'I'IVE LAW
AND
IN
THE
NEW
GREEK CIVIL CODE
OF
1946
(-4rticle
388)
By
PAN.
J.
ZEPOS,
LL.D.(ATIIENS)
(Professor
of
Civil
Law
at
the
University
of
Thessalonike)
I
THE
principle
pact(i
szmt
serclanda
has an axiomatic signifi-
cance in any system of the law of contracts. This principle,
however, underwent a fundamental change, especially in recent
times, under the influence of the so-called doctrine of frustra-
tion of contract, according to which
a
supervening change in
the circumstances under which
a
contract was concluded may
lead to the discharge of the contract and
to
the release of the
parties from any obligation to fulfil their promises. Thus, the
doctrine of frustration appears as
a
serious limitation of the
axiomatic value of the principle
pactn sunt
servnnda.
Its
theoretical foundation, however, still remains
a
problbm with
different aspects in the lekal 'systems of the various countries,
in the English legal system as well as in the systems of the
continental countries.
It
is worthy
of
notice that an attempt
was recently made by the framers of the new Greek Civil Code
of
1940
(art.
888)
to formulate
a
provision relat,ing to this
crucial problem of frustration of contract, an attempt which
gave a legislative expression to the theory of continental
lawyers and to the experience acquired during thc last decades
in continental court practice.
The problem of frustration had met a diffcrcnt fnte in
English law from the one
it
had in the legal systenis of
continental Europe.'
In English law the problem of the
'
foundation of the
contract
'
or of the
'
basis of the contract
'
arosc for the
first
time in the so-called Coronation cases, in which, however, the
problem was not solved in accordance with
a
general principle,
1
Sec,
for
a
brief
romporativc siirvcy,
H.
Tilzc in
Ilerlilru~rgleicheitdas
Iln~id.
wMcrbuch,
Vol. 6,
pp.
317
et
seq.
Also
E.
Rabel,
Das
Reclrt
des
Warenkatcfs,
I,
1936,
pp.
363
et seq.,
and
recently
H.
C.
Griltcrid~c-,
Contporoliuc
hw,
1940,
pp.
66
et seq.
Sre
now
RIRO
the
contribllliona
piiblidied
in
The
Joctriid
of
Contparaliae
Legislation,
Vol.
28
(104G),
parts
iii-iv,
pp.
1
et
seq..
a6
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