Research On The System Of The Specific Performance In CISG

As an agreement between parties, the purpose of making a contract for the international sale of goods is to perform it. However, the reality is always not as good as what people hope it will be, and the breach of contract occurs frequently. One party often breaches the contract which leads to the nonperformance of the contract. Therefore, to guarantee the contract and safe dealing by legal remedy is always one of the major content in contract law. Every country has yet established its own rules and regulations on the remedy for the breach of contract. Although the rules on the remedies of different countries are not the same, most countries put the following rules, specific performance, compensation for damage, terminating the contract and penalty, in the main remedies. Yet these remedies are not paid the same attention on, countries of civil law system consider the specific performance as the first remedy, while countries of common law system consider the compensation for damage as the first of all remedies.Beginning from the different attitudes of the two legal systems on the specific performance, by analyzing the historical origin, content and developing trend of the specific performance in the two legal systems, this thesis discusses both the agreement and disagreement of the system of specific performance in United Nations Convention on Contracts for the International Sale of Goods (hereinafter referred to as CISG), compared with the system of the specific performance of the two legal systems. It makes an in-depth annotation on the content and method of application of the specific performance in the CISG, and also makes a research on the existing problems and provides with some advices to solve them. At the same time, the thesis comes up with some ideas about what our country can get from the system of specific performance in the CISG.Besides the preface and conclusion, this thesis could be divided into four chapters.In the first chapter, the connotation, legal characteristics and meaning of the remedy for breach of contract are emphasized. Some typical remedies for the breach of contract are listed. These remedies are compared with the specific performance, to show the advantage and essentiality of the specific performance as a remedy for the breach of contract.In the second chapter, the thesis compares the rules of specific performance in the common law system with that in the civil law system, which shows one aspect of difference between the two legal systems. It also analyzes the applicable trend of the specific performance in the two legal systems, and the reasons that lead to this trend.In the third chapter, although there is a trend of the blending of the specific performance application in the two legal systems, the disagreement on the application of the specific performance in the two legal systems still exists. To compromise the disagreement and enhance the international trade, the CISG considers the specific performance as the first remedy. However, because of the differences of the historical origins and concepts on contract among the two legal systems, the rules and application about the specific performance in the two legal systems have not consolidated eventually. This chapter analyzes the rules of the system of specific performance in the CISG, mainly on the aspect of its unreasonableness and ambiguity, which is considered as an innovation of this thesis.In the fourth chapter, the thesis comes up with some measures to perfect the specific performance, and some advises on perfecting the system of specific performance of China. Once again, it emphasizes that the specific performance should be put on the first place among the remedies for the breach of contract.