Research On Efficient Breach

The principle of efficient breach is one of the key points in contemporary theory of Anglo-american contract law, which is a main theory of private law developed step by step together with the rising of theory of economic analyzing of law. Through the methods of theory combines practice which reviewing, trimming and inducing the legal economics hypothesis, theoretical basis and analytical method, together with the cases analysis (both the famous filed cases and the cases which the author met in his own experience), this dissertation is trying to explore its reasonability and limitation both theoretically and methodologically, and therefore disclosing its connotation which led a lot of argument, explaining its theoretical limitation, pointing out its necessity of re-shaping theoretical frame and exploring its meaning of reasonable and critical use of the principle theoretically and practically. Based on the double-value orientation of efficiency and fair, the author tries to break through the single-value orientation of efficiency simply based on economic analysis of the traditional legal economics analysis theory: on the one hand, from the viewpoint of explicit cost, the author compares the gets and costs under different situations of breaching, points out its limitation of compensate damages only based on the anticipated profit of traditional remedy theory and it is reasonable and necessary to adopt punitive damages in some cases of contract breach when considering all the aspects subjectively and objectively, on the other hand, adds the implicit cost such as faith and credit to the theory of the efficient breach, the author extends his views and studies it on a higher level, gets the necessary conclusion of above-mentioned double-value orientation. On the basis of above-mentioned contents, the author tries to set up a mathematical model and put it into of all the factors which may affect the breach to analyze the efficient breach in a new analytical frame and make some reasonable comments on the relevant cases from different levels and views. In the end, the author gives some basic legislative and judicial suggestions to the contract law of the PRC.