The Comparative Research On The Anticipatory Breach And The Remedial Measures

After a contract is signed, one of the parties concerned may not fulfill its contractual obligations before the term of performance expires; how does the other party concerned defend its rights has become an issue that draws much attention. The anticipatory breach system that was established in British precedents at the earliest provides potent remedial measures for the parties concerned. Through hundreds of years'development, this legal system peculiar to British and American legal systems plays a great role in practice. Compared with the solution of similar problems adopted by the continental legal system through the precarious right to defense and other systems, the remedial measures of anticipatory breach are more improved concerning protecting the right of the non-defaulting party, embodying the principles of fairness and effectiveness. The superiority of the remedial measures of anticipatory breach has been widely acknowledged.The United Nations Convention on Contracts for the International Sale of Goods, as an important part of uniform international legislation, absorbs relevant contents, and some continental legal system countries also use the measures for reference in the process of improving domestic laws. There is no exception with our country's Contract Law. It introduced the anticipatory breach system when it was issued; forming the situation that the anticipatory breach system coexists with the precarious right to defense. Based on understanding the anticipatory breach system, the thesis conducts exploration by dividing it into express anticipatory breach and implied anticipatory breach; the thesis compares the remedial measures that are adopted by British and American legal systems,the United Nations Convention on Contracts for the International Sale of Goods and continental legal system countries in each circumstance. Through the above analysis and comparison, the understanding of the present situation of the anticipatory breach system in our country's Contract Law is deepened; thought is given into and proposals are put forward concerning further improving our country's Contract Law.The thesis is divided into 4 chapters. Chapter 1 introduces the overview of the anticipatory breach system. On this basis Chapter 2 analyzes its development course in Britain, America and the United Nations Convention on Contracts for the International Sale of Goods and at last deepens the understanding of this system through the further comparison with the systems that are similar with continental legal system.Chapter 3 concerns the comparison and research of anticipatory breach remedial measures. It divides anticipatory breach into the two circumstances of express and implied anticipatory breaches, based on which this chapter investigates and compares the remedial measures adopted by the countries with the two major legal systems and United Nations Convention on Contracts for the International Sale of Goods in different circumstances.Chapter 4 is mainly the introduction, comment and analysis of the legislation conditions of anticipatory breach and relevant systems under our country's Contract Law and also puts forward proposals for further improving our country's Contract Law based on the comment and analysis.