On Fundamental Breach Of Contract

The concept of fundamental breach of contract originates from british law and then is adopted by , becoming a international provision. In generally, fundamental breach means that breach of contract committed by one of the parties results in such detriment to the other party as substantially to deprive him of what he is entitled to expect under the contract, in this circumstance, the other party has the right to rescind contract and sue for remedies. This essay mainly consists of four parts, including theoretic origins and legislative styles of the system of fundamental breach, constitute elements of fundamental breach, law results of fundamental breach and the relationship between fundamental breach and the contract law of china:The first part: theoretic origins and legislative styles of the system of fundamental breach. This system origins from the british law. Early in the 19 century , the Britain court divide the contract articles into "condition " and "warranty" according to the degree of their importance. The fundamental articles are the "condition" and the subsidiary articles are the "warranty". Breaching different articles will result in different law effect. Fundamental breach is the synonym of breaching the "condition". Once the fundamental breach appears, the party who don't breach the contract can rescind the contract unilaterally, and appeal for compensation. Therefore, in some degree, fundamental breach is always connected with the right of rescinding contract.The regulation of the system of fundamental breach in british law have great influence in American law. Although the blench the concept of fundamental breach, and hasn't divide the "condition" and "warranty" definitely. The contract law of America accepts these two concepts. It agrees that breaching the "condition" articles will form the fundamental breach of contract and result in the rescinding.of 1980 has adopted the concept of fundamental breach and altered it to some extents . The 25th article provides that: a breach of contract committed by one of the parties is fundamental if it results in such detriment to the other party as substantially to deprive him of what he is entitled to expect under the contract, unless the party in breach did not foresee and a reasonable person of the same kind in the same circumstances would not have foreseen such a result. It is obvious that the value of the system of fundamental breach in the convention is the same with that of the british law, that is ascertaining the right of the rescinding contract or limiting it. However , the constitute elements of fundamental breach is different from that of the british law, there is an additional criterion in the convention ,that is the breaching party's predication.The second part: constitutive elements of fundamental breach. There are two evaluating criterions about fundamental breach , one is articlist , the other is resultist. articlist is an earlier evaluating criterion about fundamental breach in british court, which means distinguishing between condition articles and warranty articles. Contravening condition articles result in fundamental breach, and not ,vice versa. Afterward, in practice, judges evaluated condition articles difficultly, what's more "middle condition" what scholars said implied expandly, so articlist waned and was amended by resultist.Resultist means evaluating fundamental breach according to the result of breach contract, the results of breach are serious so that nonreneger can not achieve purpose of contract, which result in fundamental breach. The author think that it is an important progress ,and it is a displaying of object in evaluating criterion from articlist to resultist ,which contributes to balance and operate in practice. Even though, resultist still has its uncertainty and murkiness, for example, what is "serious re...