On The Performance Of The Contract In Time Anglo - American Law

Contracts are always playing an important role in people's social life. Either in commercial transactions, or in daily life, people are accustomed to protecting their rights by contracts. To perform a contract, the time of performance is a must. If one party fails to perform his obligation at stipulated time, but rather at a later time, does the other party obtain the legal right to refuse his own duty? Or further, can he claim damages or ask the court to terminate the contract? While for the aggrieved party, can he claim specific performance? In Common Law, this is the issue of "whether time is of the essence".In the thesis, I take the approach of Common Law to study the concept and practice on this issue. The thesis starts with the different idea and history of Common Law and Equity, dating back to its origin and looking through its development from ancient to modern time. In the first and second part is an introduction of the general attitude and practice on the issue of time of performance. Traditionally, Common Law believed that time was always of essence, while Equity didn't tend to treat the time stipulation as essential term because Equity pursued more just and fair than Common Law. With the merge of the two systems in modern time, the issue of time has been treated as a problem requiring comprehensive consideration, but not a simple question of "yes" or "no".The third part is the core of the thesis. The main discussion is on the three means by which time will be of essence in Common Law. I also introduced some common contracts in business, such as contract of sales of goods, contract of sales of land, construction contract, etc., discussing the nature of time of performance, its role and status and the result of breach of time stipulation. The issue of "time being of essence" is in the nature an issue of the status of time term in a contract, while the status plays a decisive role in the seriousness of breach and the type of relief. For the breach of non-essential term, that is, the delayed time is not so much important, the innocent party may claim damages only and may proceed with specific performance; if the delayed time is significant to the contract and the parties' rights, or to say, the time is of essence, the innocent party obtains the right to terminate the contract. While, to decide whether it is "of essence", the British law and American law have different theories. We can learn about many unique criteria and modes of thinking by studying the evaluation of time term by common law judges and the large quantity of cases provided in the thesis. For example, the word "condition" in British law has its own meaning and function; while "material breach" in American law is a standard with more flexibility and practicality, presenting the soul of Common Law. The standard of "judging by circumstance" in Common Law concepts endows judges with more judicature to reach fair. In addition, many other regulations and practice in statute introduced in the thesis will spark our thoughts and be the source of our study and reference.In the last part of the thesis, I compare Chinese Contract Law with Common Law from the viewpoint of different concepts between Common Law and Civil Law and put forward some personal opinion and suggestions on Chinese Contract Law. I sincerely welcome professors and scholars' suggestions and advice.