A Study Of Concurrent Performance Defenses

As an important tool in the contract remedy system,the parties can rely on it to achieve self-help remedy before litigation,and the court can also make a fair judgment by identifying the exercise of the defense right of simultaneous performance.In the process of exercising the defense right of simultaneous performance,the scope of its exercise,the effectiveness of substantive law and procedural law are controversial,specifically whether the defense right of simultaneous performance can be exercised under some atypical circumstances,whether the defense right of simultaneous performance must be exercised to exclude the responsibility of delayed performance,and what kind of judgment is most reasonable when the defense right of simultaneous performance is exercised.Usually,the scope of the defense right of simultaneous performance is exercised between mutual obligations with consideration in a dual service contract.However,in some atypical cases,there is room for the exercise of the defense right of simultaneous performance: damages debt as an extension or deformation of the original debt,the defense of concurrent performance can be applied;liquidated damages can be regarded as the parties’ advance reservation of damages,it is logical to consider that the defense right of simultaneous performance can be applied;the obligation of restitution arising from the termination of the contract is essentially a change in the original property relationship;For the subordinate obligation of payment and incidental obligation which are closely related to the realization of the contract purpose,whether the obligation is performed or not has a significant impact on the realization of the contract purpose,it is appropriate to consider that the defense right of simultaneous performance can be exercised between the obligation and the main obligation;according to the principle of freedom of contract,it is appropriate to affirm the agreement between the parties to expand the scope of the defense right of simultaneous performance.Does the right holder have to exercise the defense right of simultaneous performance to exclude the liability for delayed performance? The scholarship is divided into the "existence effect theory" and the "exercise effect theory".The "existence effect theory" have three reasons.First,the debtor can ignore the creditor’s request for performance by virtue of the quid pro quo between obligations;second,the debtor has non-imputability because of the defense right of simultaneous performance;third,if the creditor does not make a request for performance,the defense right of simultaneous performance lacks the prerequisites for exercise,and the expiration of the performance period will lead to the conclusion that both parties are in breach of contract.The "effect of exercise" argument asserts that the defense right of simultaneous performance can only be exercised to exclude the liability for delayed performance,and the unexercised defense of concurrent performance cannot affect the original legal relationship and thus cannot produce the effect of substantive law to exclude the liability for delayed performance.In contrast,the "effect of exercise" is more in line with the textual interpretation of the law,in line with the requirements of "private law autonomy",and has the advantage of logical self-consistency.After the debtor has successfully exercised the defense right of simultaneous performance,there are four types of court decisions: direct dismissal of the plaintiff’s claim,partial dismissal and partial support of the plaintiff’s claim,exchange of payment judgment,and successive performance judgment.The exchange of payment judgment not only supports the plaintiff’s claim with certain conditions,but also recognizes the defendant’s right to refuse to pay,and clarifies that the defendant’s failure to perform its obligations will result in enforcement,which is formally reasonable and can ensure the maximum fairness and justice,as well as resolve the dispute once and for all and achieve litigation economy.In special cases where the defendant’s obligations are of a continuing nature,a judgment of successive performance may be exceptionally rendered.