On Partial Performance Of Contract

What discussed in this paper is partial performance of contract,it means:under the premise of the debtor's subjective well-intentioned, in the process of implementation of contract, due to changes of objective conditions,the contract can not be performed generally, and have no alternative but to fulfill the obligation of contract partially first,and go on perform until the contract is worked off; in addition,inclouding the debters fulfill the obligation of contract partially because of the pursuit of maximize profits. The concluding an fulfilling of contracts can not be completed at the same time, the process of implementation of contract is a process that gradually passing with the time.during the process,there always be some obstacles that stopping fuifilling obligations of contract generally,if we see the things as the same,to be rejected, it is clearly unreasonable. So this requries us to see it from equitable principle and good faith doctrine, considering some of the acts carefully, carding and governing it reasonable, to divert a reasonable regulation designed to serve both the purpose of completion of the contract but also to encourage trade, promoting purpose of economic developing. This paper intended to use historical research, comparative studies and economics analysis, trying to resolve the reasonable of partial performance, analysising the status and application of partial performance, And, discussing problems may occur discussion in the application. In addition to the introduction and conclusion, this article is divided into four parts.Part I:in this part ther is a general analysis of the theory of partial performance, through interpretating the meaning, the nature and the characteristics of partial performance, describing in this article partial performance does not mean "only part of the implementation", but fulfilling it step by step under the certain conditions, and pointing out the judgments of partial performance should be see from both subjective and objective.then comparing partial performance with actual performance, anticipatory breach, doctrine of part performance,revealing the independence of partial performance.PART II:The study of partial performance of comparative Law. First, analysing related systems and their evolution of the countries of continental lagal system:Rome, Italy, France, Germany. and then analysing the attitude of Anglo-American law system to partial performance, in order to make some reference value.PART III:From the view of analying methods of economics,use Coase theorem, posner theorem, game theory and other related theories to explain the rationality of partial performance and significance of legal economics, point out that partial performance consistent with effectiveness and efficiency requirements. In accordance with the view of economics:if the existence of a legal norm is reasonable, first of all depends on whether the existence of "economic". Contract law, which should certainly be sure those which is economy, efficiency, the existence of the terms. On the one hand the contract to ensure the normal transaction, on the other to achieve effective and efficient flow of resources. And can improve market players'contracting enthusiasm in a large extent, do not have to be full of fears and misgivings when trading, so it can improve the vitality of the market and promoting economic development,then analying risk assignment problem in partial performance,and then compared partial performance with compensate for breaking contract in the view of economic and analying its reasonable.PART IV:Detailed analying the possible circumstances and the atitude both parties showing on partial performance. Detailed analying the application of the creditor's refusal right. Considering the right to refuse of creditor can be a available way of self-protection,and to avoid falling into default of creditor. Also pointed out that this right is not unconditional application of the creditor, and analysis of its application circumstances and the situation negates the right of rejection, and from the subjective and objective aspects of their views on how to determine the application. And analying the problems after creditor taking the partial performance,then the debtor breaking the contract,and the compensate, dissolution of contract for breaking contract. Considering that the creditors receiving the partial performance does not affect the application of a variety of breach of contract.Followed the meaning and nature of such issues the text has been discussed, in the previous partial,fulfillment of the meaning and nature of such issues, raise some methoes and ways about the construction of partial performance,and the probems which may occur in the partial performance system.