On Anticipatory Of Contract

The contract concluded legally should be protected by law before the time due for performance and after the time due for performance. Both the common law system and the continent law system confirm this principle,although they found on different theory. If one party refuse to perform the obligation before the time due for performance,or one partyconclude that the other party won't fulfill his duty on the basis of objective fact. The common law system and the continent law system adopt the different method to relief the parties. The common law system take the method of unsafe right of defense and repudiation, the continent law system take the method of anticipatory breach.This paper has analysed and compared the two law systems, then conclude that the common law system can settle the problem of anticipatoy breach in its inherent frame. So it is't necessary to introduce anticipatory breach totally. On the basis of the conclusion, this paper discusses the existing provisions of our contract law, and consider that our country inherited the unsafe right of defense, and put forward that it will be more reasonable to explain the article 94 and article 108 by the theory of the continent law system. Then the author analyses the deficiencies of related stipulations of our contract law and proposed suggestions to improve the related stipulations in order to protect the rights of parties fully and safeguard the transaction.This paper has carried on the elaboration from three parts. The first part is about the elementary theory of anticipatory breach. Have investigated concept and designation of the anticipatory breach at first then analysed that the meaning of anticipatory is before the time due for performance. Then the paper prints out the erroneous zone about the type of anticipatory breach which is approved by some domestic scholars, then brings forward the correct division of the type is anticipatory repudiation and prospective inability to perform, and analyses the important constructive conditions and legal effects. Then the author analyses the theoretical foundation and value implication of anticipatory breach.The second part investigates that the country of continent law how to solve problem of anticipatory breach by Germany law,and explain the latest development of new Germany debt law in detail. The author discuss the establishment of the anticipatory repudiation institution and conclude that the essence of anticipatory repudiation of new Germany debt law and anticipatory repudiation of the common law system is consistent. Have analysed the expansion of unsafe right of defense of new Germany debt law, compared the unsafe right of defense and the prospective inability to perform, discussed the differences between the two institutions, pointed out the different functions of the two institutions. Then, the author concludes that it is characteristic of the continent law system to stipulate the anticipatory repudiation and unsafe right of defense seperately.The third part sets out to analyse related stipulations of our contract law. Then the authou points out that our country has inherited the unsafe right of defense, and put forward that it will be more reasonable to explain the article 94 and article 108 by the theory of the continent law system. Then the author discuss the deficiencies of related stipulations of our contract law and proposed suggestions to improve the related stipulations.