On Fundamental Breach Of Contract

Fundamental breach of contract in early Roman law has had its shape,which originated in England common law, then the United States law and civil law have adopted and is absorbed by important international conventions, at present has become an important legal system in modern contract law. In this paper, in the perspective of rational development of contractual oblagations, theoretical research and system research as a based line focuses on definition, the basic theory, type, legal consequences of fundermental breach of contract and the problem in China to build a rational system. In the perspective of rational development of contractual obligations, the host-meaning of fundamental breach of contract——breach of contract, concerning the type and judging standards and other issues. This paper analyzes, in the perspective of rational development of contractual obligations, the re-understanding. Based on the CISG provisions and academic interpretation, scientifically defines the fundamental breach of contract, and finds the differences and relations between the fundamental breach of contract and unperformance and the default.From the Roman law,fundamental breach as a material breach and termination of the contract is closely related to the legal systems and international conventions as a creditor to terminate the contract. Through the history and comparative analysis, explore the trends of fundamental breach of contract theory and system. Fundamental breach of contract system has a profound theoretical basis. In the perspective of autonomy and control, fundamental breach of contract embodied in protecting powerand limited right, and finally to autonomy as the goal. Fundamental breach of contract system bases on ethical philosophy, law, economics. The value level, the fundamental breach of contract system shall be multi-value system, based on justice, freedom, equity, security and efficiency values for various items of value goal, but justice is its core values, freedom, equity, security and effective value are its basic values. In the method, the fundamental breach of contract research should adhere to type subsumption approach. Rational development of contractual obligations in sight, the fundamental breach of contract can be divided into the fundamental breach of contract for contractual obligations and violation of fundamental breach of statutory obligations. Fundamental breach of statutory obligations empirical analysis shows that there has been a trend of fundamental breach of contract forward, backward expansion. Type is a very effective system of way. Scientific construction of the fundamental breach of contract is conducive to the interests of the parties and their transaction security maintenance. Fundamental breach of contract occurred, the legal effects include:right of cancellation or the defense of rights and negating the effect of fundamental breach of the exemption clause. Rescind and defenses were different, but they are the way to achieve the observant party rights. Negating the effect ofundamental breach of the exemption clause, fully embodies the principle of good faith. Therefore, the fundamental breach of contract to judge the effectiveness of exemption clauses after the occurrence of a more flexible approach. China's fundamental breach of contract theory and system is not complete. From completely rational-bounded rationality, perspective the fundamental breach of contract theory and our system of incompleteness, mainly as follows:the lack of the concept of fundamental breach, limited understanding of purpose of the contract and the ambiguity of criteria for judging. Therefore, we should build a unified concept of fundamental breach of contract, rational purpose of the contract and the interpretation criterion of a rational reconstruction, in order to the rational system of China.