Studies On Anticipatory Breach Of Contract

Anticipatory breach of contract is a system which the Anglo-American case-law establishes, in order to solve the risk of unperforming an contract before the time for performance comes. This system at the beginning of the establishment, has caused the intense argument and once encountered some scholars' oppositions. But its formidable vitality and the superiority, appear unceasingly in its development course. This system manifests the principle of good faith and legal basic value such as fairness, benefit, security and so on. Its vital significance is to protect the benefit of the aggrieved party, urge to solve the contract dispute as soon as possible,avoid social resources waste and so on. The system of anticipatory breach is stipulated in US "Uniform Commercial Code", "Restatement of the Law,Contracts" (second edition) and "United Nations Convention on Contracts for the International Sale of Goods", "Principles of International Commercial Contracts General". But it is stipulated differently in detail.In the Anglo-American law anticipatory breach of contract is mainly divided into expressly anticipatory breach and impliedly anticipatory breach. The former is that the party shows explicitly that he will not perform the contract. The latter is that the party indicates that he will not be able to perform the contract by own behavior or other facts. Although the two performance shapes are different from each other, they have the same remedies, namely to suspend performance of the obligation, to terminate the contract before the time for performance comes, to request the compensation for damages before the time for performance comes, and to persist the contract potency waiting for the other party to perform the contract.There is no concept of anticipatory breach in the continental laws, but unsafe right of defense is stipulated in order to implement the principle of good faith. This system is advantageous in balancing the two parties'benefit and protecting the transaction security. There are many similarities between this system and that of anticipatory breach. After all they come from two legal systems, so there are great differences in the suitable prerequisite, the basis of exercising right and legal remedies.Anticipatory breach of contract has been introduced in "Contract Law" of our country, and unsafe right of defense is accepted also. This act has some positive sense. But there is inevitably conflict because two systems coexist. Furthermore, because the system of anticipatory breach has not been established in our country for long, many problems and insufficiencies exist, such as unreasonable system arrangement, inconsistent legal term, incomplete remedies and the overlapping superposition with the rule scope of unsafe right of defense. Taking this into consideration how to consummate the system of anticipatory breach in the contract law ought to be the research topic.This thesis will compare and study the Anglo-American legal precedent, the legislation and the international trading unification method. Based on it, more comprehensive research is conducted in concept, important constitution, remedies and legal value of the system of anticipatory breach. By comparing with unsafe right of defense, the thesis probes into the logical foundation of this system theoretically and attempts to clarity the viewpoint"anticipatory breach violates the creditor's anticipated rights."Besides,the author puts forwards a viewpoint that the act of anticipatory breach violates the obligation that the contracting parties must not deny the contract and anticipatory breach essentially breaks the contract actually. The thesis also evaluate the rule of anticipatory breach in contract law of our country, as well as puts forwards certain consummation proposals.