A Study On The System Of Anticipatory Breach

Anticipatory breach system is a legal system which is designe for the protection of the expectant right of the contract. It originated in the British case law and was later stipulated by the Anglo-American Law, U.C.C and United Nations Convention on contracts for the International Sale of Goods, and so on. It has been perfected gradually and become the main content of the contracts in Anglo-American Law. The system has great effect upon the Continental Law. The new contract Law of China adopted it to a certain degree. From the point of improving anticipatory breach in the contract law of our country, this paper is devoted to the all-round and systematic study of the system, on the basis of which several views on the improvement of the system is put forward.Anticipatory breach refers to the conduct or state that the other party will not perform the contract. In the Anglo-American Law the system is divided into the express and the implied. The composition of the former is usually made up of 4parts: I)the contract is established; II)the time of breach is between the establishment of the contract and the beginning of performance period of the contract; III) express and positive refusal of performance; IV)the obligations refused to perform are the main of the contract. As for the latter, the third part of the composition is that one party has reasonable evidence to prove that the other party will not perform the contract while the other three parts are the same as the corresponding parts of the express anticipatory breach. U.N.C.C.I.S.G divides anticipatory breach into two categories: the basic and non-basic. The composition of the basic includes following parts: i)One party has substantial facts to prove the other party will not perform the contract; ii)the violation can be clearly seen, iii)the other party's conduct is the basic violation of the contract; iv) the time of violation is between the establishment ofthe contract and the beginning of the performance period. And as for the non-basic. The composition also includes 4 parts. The 1st and the 4th part are the same as the basic anticipatory breach . The second part is that the conduct of not performing the contract can be obviously seen The 3rd part is that the other party will not perform the larger part of the contract obligations.. Anticipatory breach is closely related to concerned concepts-Unassured pleadings or practical breach of the contract. Although there are many similarities between them, the differences are still great. The rule for putting responsibility on the violated is one in which fault is not considered; The remedies for anticipatory breach are as follows: I) suspending performance of the obligation; ii) declaring the contract avoided; iii)Damages and so on. There is a solid foundation for the existence of the anticipatory breach system. It is the natural meaning of the concept of contract, the basic demand of the rule of honesty and credit, the reflection of economic relation and the showing of the price target designed by the contract-fairness, efficiency and safety. The contract law of China absorbs in the system of anticipatory breach, but there are some faults in our legislation In future, the system should be improved in the fields of definition, composition, classification, scope of application and remedies so that it can meet the needs of the practice of contract.