The Remedy Of Specific Performance For Breach Of Contract

Specific performance of contract is one of the most significant remedies for breach of contract. Specific performance of contract is preferred in damages to the position in Civil law system, while in Anglo-American law system it is an equitable relief. Specific performance of contract is the rendering, as nearly as practicable, of a promised performance through a judgment or decree. A court-ordered remedy that requires precise fulfillment of a legal or contractual obligation when monetary damages are inappropriate or inadequate, as when the sale of real estate or a rare article is involved. Specific performance is an equitable remedy that lies within the court's discretion to award whenever the common-law remedy is insufficient, either because damages would be inadequate or because the damages could not possibly be established. In essence, the remedy of specific performance enforces the execution of a contract according to its terms, and it may therefore be contrasted with the remedy of damages, which is compensation for non-execution. In specific performance, execution of the contract is enforced by the power of the Court to treat disobedience of its decree as contempt, for which the offender maybe imprisoned until he is prepared to comply with the decree. Actually, it is not strictly accurate to say that the Court enforces execution of the contract according to its terms, for the Court will not usually intervene until default upon the contract has occurred, so that enforcement by the Court is later in time than performance carried out by the person bound, without the intervention of the Court.Contract law in China regards the remedies of specific performance and damages parallel to each other. Despite the judicial practice of specific performance at home and abroad is not prevalent as the remedy of damages, the author argues that the specific performance of contract bases on the understanding and interpretation to the word contract. Its significance and value in the academic and practice should be drawn of attentions. From the perspective of empirical analysis, the thesis makes comparisons between the remedies of specific performance in the relief system for breach of contract in the two legal systems on status and applications. And then sums up the historical evolution of specific performance in the relief system for breach of contract in contract law in China. In the empirical analysis of the same time, seek deeply causes of the formation of legislation. From the view of Jurisprudence and Legal Economics, the thesis compares specific performance with the other important remedy of damages and demonstrates that to regard remedy of specific performance as a certain and primacy remedy of contractual breach system is legitimate and reasonable. As a consequence of the above, several ideas on the remedy of specific performance of Contract Law in China are proposed.The thesis is composed of the introduction, main body and conclusion parts. Introduction introduces the background and significance of writing, including the study of status quo on this issue, the purpose of thesis, the structure of the article and demonstration methods. Introduction of the thesis is meant to set a premise. Main body consists of four parts. The first part introduces the remedy of specific performance in Anglo-American law and Civil law system. In the light of relevant legal provisions, the thesis interprets and analyzes causes of different status and effect. The second part focuses the remedy of specific performance on the breach of Contract Law in China, reviewing the specific performance relied on the "Economic Contract Law", then its application in the new "Contract Law" experienced during the period of history. The third part demonstrates the remedy of specific performance should be certain and primacy in the relief system for breach of contract. Firstly this section analyzes that the remedy of specific performance is based on the principle of autonomy of private law and is in accordance with the moral basis of contract legitimacy. It also realizes the contract based on the reasonableness in the expected functionality of contract. Demonstrating the value of the two systems of remedy, the thesis obtained the status of specific performance in which it ought to be viewing that the remedy of specific performance of relief system should be in default or tied for first position. The fourth part bases on the previous thesis. The remedy of specific performance of contract law in China is not provided explicitly on the form of specific performance, subjects of right and periods of claim, the constraints on costs and the defense right of breaching party. The defense right of breaching party is brand new proposed and provided by the thesis. Conclusion part draws conclusions of the thesis, summarizing all of the standpoints above.