Research On The Rule Of Anticipatory Breach

Anticipatory breach is one of the important systems in the modern Anglo-American contract law based on the case law. It consists of two forms. Before the performance of the contract, the party shows, expressly or impliedly, that he is not minded to perform the contract. The different remedies are regulated in the law for the two forms of the anticipatory breach. The remedies give the aggrieved party chance to protest him or her before the non-performance so as to avoid more damages. The systems, as one of the demonstration of the principle of good faith and the principle of equity, may not only reduce the damages that would incur, also resolve the disputes in due course, in order to avoid more social resources.The system of anticipatory breach has the effect on some legislations, CISC for instance. Article 17 of The Economic Contract Law Concerning Foreign Affairs of China also shows it in certain extent. There is a heated discussion on it before the enact of the Contract Law in China. From the Contract Law, the scholars generally believe that the article 94 and article 108 aretransplanted from the system of anticipatory breach, while the article 68 and article 69 are come from einrededer unsicherkeit.However, the systems of anticipatory breach has ample meanings so that it is a question that whether the two articles would get all of them and have the full effect in practice. Anticipatory breach and einrededer unsicherkeit have some in common so that it is possible there are some conflicts. The paper makes a research on the source, theoretic basis, and the forms of the system of anticipatory breach and aims to discuss it more systematically. Based on it, the paper also gives the advice for the legislation. Finally, the paper points out that comparison between different legal systems is necessary during the process of the legal transplants.