On The Actual Performance

Specific performance as one kind of approach to relieve the violation is acknowledged in both Civil law system and Common law system, but there are differences to choose the way of specific performance or damages between the two legal systems.In this article, we analyze the rationality of specific performance as a approach to relieve the damage of violating the contract, and as well as carried out the question to specific performance to carry on the elaboration. Besides the introduction and the conclusion,the article altogether divides into four parts.The first part deals with the necessity and rationality of specific performance which is taken as a kind of approach to relieve the violation of contract. First of all, it is a basic request in the contract law that the contract which is established according to law must be complied.After the contract is established according to law,the two parties must fulfill it, any one of them can not terminate the contract in his will unless there are opposite agreement or the law has the opposite stipulation.The principle that the contract must be complied strictly requests parties must fulfill the contract as far as possible.Specific performance requests that the parties must fulfill the obligation of the contract comprehensively and adequately, not only it respects the binding force of the contract, but also makes the violated party have full relief and violated realizes the goal of the contract.Secondly,in the manner of economic analysis,specific performance has great value as a kind of approach to relieve the danages of violating the contract,and it is efficient,although is under the situation of so-called "efficient breach". Thirdly,because some commodities have not the interchangeability, At this time the relief which is made through the specific performance would make the interests of the violated party be protected more fully, make the goal of the contract be realized more adequately than before.In the second part,we will analyze the difference of choosing specific performance or damages between the two legal systems, and discuss the development of specific performance in our country.In the Civil law system, specific performance is taken as the universal approach for correcting non-performance.The parties have right to request the contract being performed ordinarily.In the Common law system,Specific performance is appliedas an exceptional remedy due to the relation between the equity law and the common law, there are strict restraints on the application of specific performance.The differences between the two legal systems are made by following reasons: Firstly, there are different ideas whether the behavior of violating the contract should be punished morally or not. Secondly, there are different arguments whether the obligation of violating the contract should embody the function of punishment or not. Thirdly, in the Common law system, the relationship of the common law and the equity law which is reflected in the choice of the approach of violating the contract is that damages in the common law as the universal approach. In the development of our country, specific performance have a progress which is from one basic principle in the performance of contract to a approach to relive the violated contract. The third part take our country law of contract correlation stipulation as the analysis frame, has carried on the analysis suitably to specific performance.As far as the determination of the request of specific performance is concerned,it ought not to only define the requester as the non-mistake party. Regarding the administration of specific performance in different kind of violating the contract, when discussing specific performance, we discriminate the anticipated violation and the actual violation. As far as the anticipated violation is concerned, we believe that if one party acknowledged the anticipated violation and requested the other party taking responsibility of the violation of the contract, then the former party would choose specific performance from many approaches of obligations.In the other word,the party could request specific performance before the delaine of the performance of the contract, but the party must operate the contract after the period, otherwise will make the inequity between the two parties.Speaking of actually breaks a contract, our country law of contract had stipulated "does not fulfill" and "the fulfillment does not conform to the agreement" two situations, speaking of does not fulfill, it can be divide unable to performance and refuse to performance two kind of situations. speaking of the fulfillment does not conform to the agreement,we should analyze whether to do the measure of specific performance or not according to different situations.There are also different manners about the limitation of specific performance between the two legal systems. The fourth part mainly discuss the method and the administrating of specific performance. Undertakes the violation responsibility way speaking of our country law of contract 111 th stipulation each kind, the repair,the replacement and the rework belong to specific performance,but speaking of the returned goods, the reduced cost or the reward, then cannot integrate the specific performance. About the specific performance execution, the article discuss the administration of specific performance, according to the regulation of our civil procedure law.