On Anticipatory Breach

Anticipatory breach of contract means a lot in balancing the interests of parties of contracts and in carrying out the principles of justice and good faith in Britain-America law.In the leading case of Hochster v. De La Tour, British court created the rule of repudiation in 1853, which allowed the victim to cancel contract and claim damages when the other party breached contract expressly. Again in 1894's Mrs. Single v. Mr.Single, British court established diminished expectation, allowing the victim to suspend his performance and to demand adequate assurance of the other party's performance if the other party breached main contract obligations, or to cancel contract and to claim damages when the other party failed to provide assurance of his performance. American Uniform Commercial Code and Restatement of Contracts turned those preceding case principles into legal provisions and further enriched related contents. The reason why the system of anticipatory breach comes into being and develops is mainly due to its priorities as follows:a. decrease the parties' loss;b. protect the victim whole-sidedly and suffiently.Meanwhile, the victim should engage himself to the principle of lightening damages reasonably when he exercises his right to claim damages.To carry out the principles of justice and good faith, continent countries created the system of right of uneasy pleadings, allowing the former performer to exercise right of uneasy pleadings to suspend his performance and to claim assurance of the other party which is in bad property conditions and has the probability not to perform his obligations to pay the price or to take delivery of the goods. The system of right of uneasy pleadings has the same value and functions as that of anticipatory breach of contract, esp. diminished expectation. Yet generally speaking, the system of anticipatory is better in protecting the victim's interests than that of the right of uneasy pleadings.As is accepted by all the signatory states, United Nations Convention on Contracts for the International Sale of Goods combines the system of uneasy pleadings with that of anticipatory breach of contract and absorbs available components of those two systems. As a signatory state to the convention, China has in the sphere of foreign trade accepted the provisions on anticipatory breach since beforeher Contract Law was declared.As the most important law to regulate the exchange relations among the equal subjects in the market economy, China's Contract Law formally accepted the system of uneasy pleadings as well as that of anticipatory breach, which is a milestone in China's civil legislature, showing China's absorbable attitude towards different law systems. However, the law's contents about anticipatory breach of contract is not rich enough: Law provisions appearrelaxing and out of order and law terms do not mean the same. And what's more, it use the mode of the right of uneasy pleadings to express what ought to be expressed in the system of diminished expectation, which leads to the difficulty in the cognizance and appliance of diminished expectation.In this article, analysing the system of anticipatory breach of contract and related systems, the writer states what she understands and masters about this system and offers her personal opinions on how to improve the system of anticipatory breach of contract in China's Contract Law.By Wang Xuguang Directed by Prof.Yin Dongnian...