On The Principle Of Actual Performance In Contract Law

Atual performance is an important remedy for the breach of a contract. Different countries maintain different attitudes to the principle and slight differences also occur in the applicable conditions. If actual performance is applied in preference for the defaulting party to undertake liability, it will fall into an awkward dilemma that, on one hand, breaking a contract will do damage to the effect and value of a contract, and on the other hand, valuing the effect of a contract and performing the principle would cause a waste of social resources and even unfairness for the defaulting party under some specific circumstances. While the defaulting party can obtain more benefit from its default than its performance, is there any necessity for the law to enforce the defaulting party to perform the contract?In connection with the problem above, the article introduces the basic theory of actual performance and analyzes the value judgment and option of actual performance system of the common law legal system and the civil law legal system by comparision way. The article holds that economic analyse method can be introduced in check and judge, in the hope of improving the actual performance system in the Contract Law of our country through benefiting by the successful experience about actual performance system of other countries and the reasonable value of efficiency breach theory, and guiding the parties to choose a better remedy rationally between actual performance and efficiency breach to achieve the balance between general justice and particular justice to the maximum limit by both preserving the contract effect and optimizing the allocation of social resources.