Study On The System Of Anticipatory Breach

Anticipatory breach, one of the important rules of the moderncontract law of common law, is designed for the protection of the expectant rightof the contract. It originated in the British case law and was later stipulated by theAnglo-American Law,U.C.C and United Nations Convention on Contracts for theInternational Sale of Goods, and so on. With several hundreds years'development, it is very perfect now. This system is also introduced into theContract Law of People's Republic of China issued and implemented in 1999. Fromthe point of improving anticipatory breach in the contract law of our country, thispaper analyses and illustrates the system of anticipatory breach of contract by usingthe method of comparative analysis. And then put forward several views on theimprovement of the system in expectation of offering certain help in perfecting thesystem of the anticipatory breach of contract in China.By comparison with actual breach, The author summarizes the character ofanticipatory breach and give its definition. The classification of anticipatory breachare different. It is classified into anticipatory repudiation and anticipatoryimpossibility of performance by some scholars, while other scholars classified it intoexplicit anticipatory breach and implicit anticipatory breach. The author thinks thatthe former is better than the latter. By introduces and analyzes the rules ofanticipatory breach in American Uniform Commercial Code , and United NationsConvention contracts for the International Sale of Goods, the author summarizes theforms of anticipatory breach, the necessary constitutes, which make up anticipatorybreach and the remedies to anticipatory breach.It is expected that the nature of anticipatory breach is composed to the right thatcreditor selects to relieve. If creditor refuses to recognize anticipatory breach, resultis that the contract exists and restricts continuously still mutual involved party. Ifcreditor recognizes anticipatory breach, he can mention lawsuit immediately and hasright to discharge the contract. Creditor make to recognize the option of anticipatorybreach, must make opposite side know his decide.By study the anticipatory breach of Anglo-American Law,U.C.C and UnitedNations Convention on Contracts for the International Sale of Goods, the author findthat there are some weak points in the system of anticipatory breach of China. forinstance, the structure of certain law articles is loose, the meaning of the certainarticles is vague, the contents of certain articles are overlapping and conflict.. Thewhole system is lack of unity, continuity and stability.By comparing the system of anticipatory breach with the system of the right ofuneasy pleadings, The system of right of uneasy pleadings has the same value andfunctions as that of anticipatory breach of contract, yet generally speaking, thesystem of anticipatory breach is better in protecting the victim's interests than that ofthe right of uneasy pleadings. In expectation of offering certain help in perfecting thesystem of the anticipatory breach of contract in China, the author courageously putforward his own opinions to some problems on remedies for anticipatory breach thatstill in dispute among scholars at present: article 68 and article 69 in the ContractLaw of People's Republic of China are the system of the right of uneasy pleadingsand that article 94 and article 108 are the system of anticipatory breach, there shouldbe improvements in order to reduce reduncy and conflict. There should be limitationon the creditor's right to refuse to recognize the other party's anticipatory breach soas to avoid and prevent abusing his right. It can benefit the balance of both partie'seconomical profits and the realization of the trustworthiness principle in business.