Research On The Theory Of Efficient Breach In Anglo-American Law

The theory of efficient breach is one of the key points incontemporary theory of Anglo-American contract law, which is amain theory of private law developed step by step together with therising of theory of economic analyzing of law. It's most remarkablecontribution is regarding the efficiency as an important value in law. Itremedies the shortage of legal analysis through putting the efficiencyto the contract law from economics. The theory of efficient breach iscriticized also because of it since put forward. Some scholars claim itoffend the principle of good faith and equity, What's more, it is notapplicable on our actuality.This article uses civil basic theory todiscuss its connotation, academic basic and application in China.This article is composed of four chapters. The first chapterconcerns "the connotation of efficient breach". It clears the concept ofefficient breach through the cases, and points out themisunderstanding about it. Then this chapter generalizes theapplication scope and composition. The second chapter analyses theessential theory about efficient breach. This chapter introducestheoretical foundation which makes the efficient breach reasonable,including economic value and legal foundation, emphasizing on thecore theory——how to incarnate efficiency and achieve to treasuremaximum. The third chapter evaluates the principle of efficient breach.At first, this chapter analyzes the opinions against efficient breach,then discusses two doubting topics——whether efficient breachcontrives the principle of good faith and equity or not. At last we getthe conclusion that the efficient breach is based on the profoundtheoretical foundation, and it is not go against with the value ofeconomy and law. The last chapter concerns "the application of efficient breach in China". After introducing the relative legislation,judicature, societal circumstance and developing trends, this chapterpoints out we have conditions to apply the principle of efficient breach,and gives some advice on application manner, extension andoperation.