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A Study On Fundamental Breach Of Contract

Posted on:2007-01-29Degree:MasterType:Thesis
Country:ChinaCandidate:X N LuFull Text:PDF
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The fundamental breach of contract is a contractual system originates from British common law. It plays a key role in both Common law system and Civil law system and even become the fundamental stone of United Nations Convention on Contracts for the International Sale of Goods (CISG). The value of fundamental beach system is restricting the right of rescission and the significance of this system is balance the interest between delinquent party and non-delinquent party. Similar to the most countries of civil law system, there is no concrete definition of fundamental breach in our country's law. However, the Article 94 of Civil Law actually stipulates this system in our country.This paper is generally divided into three parts.Part 1:"The origin and evolution of the fundamental breach."The system of fundamental breach is originated from British common law. In nineteenth century, the British courts divide the contractual article into"condition"and"warranty". Only the breach of"condition"article will leads the fundamental breach. The correlative regulations and provisions of British law greatly influenced both Civil law and Common law system. Under this condition, CISG defined the fundamental breach firstly and make an extent of it. Although there is no specific concept in our law, the Article 94 of Contract Law of People's Republic of China actually established the system of fundamental breach. Part 2:"The criterion of fundamental breach."Fundamental breach is a special kind of breach of contact in Common Law system. This part analyzes the different criterions under the different situation. According to the experience of legislation and judicial practice, there are four forms of breach of contract. They are non-performance, delayed performance, flaw performance and anticipatory performance. My paper researches the different criterions under these four situations and points out the lack of Contract Law PRC.Part 3:"The legal consequence of fundamental breach". Generally there are two consequences. First, non-delinquent party has the right to rescind the contract because the fundamental breach would make him achieve nothing and the contract seems meaningless. But the non-delinquent party shouldn't abuse this privilege. Second, the delinquent party can't quote the exempt clause. Exempt clause is an article that both parties promised beforehand to confine or absolve their future obligations. It was originated in Britain too. Fundamental breach is a serious default of contract, which damages non-delinquent party's reasonable anticipating interests. It is unfair to absolve the delinquent's obligation.
Keywords/Search Tags:Fundamental breach of contract, Material breach, Rescission of contract, Criterion
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