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在大陆法系国家被普遍采纳的自始不能的合同无效规则的建立系出于对罗马法法源的误解,作为其学理基础的相关自然法学说也有失偏颇,从而应予废弃。由于不宜赋予无意义的约定以拘束力,传统上被涵盖于自始不能之下处理的荒谬的合同通常仍应无效。自始不能虽然也能够被理解为共同错误的一种情形,但由于债务人原则上应承担错误风险等因素,其不应享有撤销权。在自始不能场合,债务人违反的仍系给付义务。倘履行不能是不可抗力引起的,如果债务人不知道也不应知道给付障碍,责任不成立。由于违约责任不应被单纯地当作追求期待利益的手段,在债权人知道自始不能的情况下,债务人不承担责任。
In the civil law countries are generally accepted since the establishment of the contract can not be invalid rules derived from the source of the law of Rome misunderstanding, as its theoretical basis of the relevant natural law theory is also biased, and should be abandoned. Absurd contracts, traditionally covered under non-compliance, often should not be valid, given the inadmissibility of nonsense binding conventions. Since the beginning can not be understood as a common mistake, the debtor should not enjoy the right of withdrawal because the debtor should, in principle, bear the risk of wrongdoing. In the unlikely event that the debtor is still in violation of its obligation to pay. If performance can not be caused by force majeure, the liability does not hold if the debtor does not know or should not be aware of the obstacles to payment. Since liability for breach of contract should not simply be taken as a means of pursuing an expectation of interest, the debtor is not liable if the creditor knows that it can not be done from the beginning.