| Implied anticipatory breach refers to the situation that before the date of the performance, when one party of the contract is unable to carry out the contract be indicted by his actions or objective circumstances.Implied anticipatory breach system stems from the case law of the United Kingdom. Continued progress has been made after many cases. It constitutes an important system to protect the legitimate rights and interests of the parties in the Common Law Contract Law. The United Nations International Convention on Contracts for the International Sale of Goods also introduced the system. Whether it is reasonable for the provisions of implied anticipatory breach has caused heated debate. The author discusses the characteristics of implied anticipatory breach system, and explain the value of its system from the point of view of maintaining trading order, in line with the principle of fairness and efficiency principles to demonstrate the necessity of its provisions.Because of the important role on protecting the legitimate rights and interests of the parties, our country also introduced implied anticipatory breach system and modified it. But because of reasons of the legislation technology and other aspects, the system is not perfect. The author analyzes the reasons. Firstly, it did not become a separate ordinance. Secondly, the scope of application provisions too narrow. Thirdly, the relief measures are imperfect. In order to protect the interests of the parties, our country introduced the Precarious Right to Defense at the same time. It would have been an innovation in the1egislation, and the legislative intent is also good. But there is significant coincidence between of both, this leads conflict to exist in the same legal problems. There are also difficulties in its application. The author analyzes the specific provisions of the two systems in our contract law and combines academic research to come to the difference and relation between them. I hope to straighten out the relationship between them in our law.The author query and analysis the specific provisions between the common law countries and civil law countries and regions to solve the problems of implied anticipatory breach of contract system. The comparison of different provisions of different countries let me come to a conclusion that the Precarious Right to Defense and the implied anticipatory breach of contract system are the similar provision on the same problem, and I find the way to solve the defects in the implied anticipatory breach of contract system of our country. First of all, the implied anticipatory breach of contract system should be formulated lonely to be a separate ordinance to maximize its value. Secondly, its scope must be defined to prevent the contradiction in the application. Thirdly the rights that requiring the other party to provide guarantee need to be increased to the compliance party. It can protect transaction security and the legitimate rights and interests of the parties. At last, the range between of implied anticipatory breach and the Precarious Right to Defense should be distinguished to let them not be conflict. |
