Specific Performance As Remedial Methods For Breach Of Contract

Relief system is an important question of contract law. As an important method of contract breach relief specific performance is embodied in many countries' contract law. However, because of historical traditions, legal systems features, as well as the differences between theoretical systems,each country provides different system of specific performance. The specific performance is not only related to the protection of legal rights and interests of the parties, but also related to maintain social economical order and normal development.And on a further level it reflects the game between legal autonomy and the regulation of national power. The reaserch of specific performance especially on the common law system and the international covenant can clearly reveal the difference between the two legal system and the development trend of legal systems integration which means a good sample for Chinese contract law.There are kinds of concepts about specific performance.In the common law system it is a remedy provided to the victims by the courts on equity because of someone's breach behavior of contract.It is an special part of Remedy in common law system which is decided by the contrant's items.Specific performance is different from Chinese "Actual Performance Principle" which is basic in the era of Planned Economy,and also different from the theory of civil law system. On Anglo-American Law the nature of specific performance is one of relief measures by Court's discretionary, rather than the right to request relief based on claims on civil law.The system background of specific performance is the coexistence of the court system which concludes both common law and equity law and the judgement of equity is a confrontation and supplement to common judge.The theory background is the moral arguments about the contract, private law autonomy and freedom of breaching a contract, pragmatic thinking and the conflict of the legal value.The social background is the the objective needs of capitalist economic development.The applicable conditions of specific performance are:the inadequate damage, mutuality,uncertaincy standard,equitable fairness,court's agreement and consistent with the basic conditions of the relief for breach. The restrictive conditions of specific performance are: Impossible payment, impracticability of specific performance, lack of mutuality,no necessary for the creditors, violation of the law or the provisions of the contract, reliance on personal relations or relations of trust.As the development of social economic specific performance is considered much more reasonable because the morden legal system pays more attention on the social benefits.Specific performance has been used much more both in the morden English law and UCC,and the application on labor contract and sales has been changed a lot. Economic Analysis of Law and the theory of efficiency of contract breach provides a strong support to specific performance of the system.However,the theory itself has lots of flaw cannot be explained so it is still questioned.In order to adapt to economic globalization, and promote the development of cross-border trade,international world paid huge effort to the integration of specific performance system between common law and civil law which is not only from the effort given by the international covenant like CISG,but also from the common point of contract theory and the common background in social practice.All of these promoted the integration of legal systems and provided the possibility.China's current contract law on specific performance of system is not perfect,so we shouldlearn more from the common law system.Even the specific performance is taken as thefoundermental relief, it still needed to add more restrictive conditions,and also givengreater discretionary power to judges in international cases in order to protect nationalinterests.