| The rule of anticipatory breach of contract originated from Anglo-American Law in the middle of the 19th century, and in Anglo-American Law too, it grew into a complete and independent system. In Continental Law, we can not find this legal term, but substantially, the Continental Law also has its legal relief measures against breaches of contract before the debt's expiration , namely the system of right to defense of uncertain performance. However , this system is not mature enough because of its many blemishes. In 1980's , the system of anticipatory breach of contract suffered the favor of the International Sales of Goods of the United Nation ( briefly named Convention thereinafter) by reason of its scientific and satisfying the demand of the fulfillment's development; the Contract Law of People's Republic of China new-made in 1999 has introduced into the prescription concerning anticipatory breach of contract in the Convention , but it needs amending by reason of the overlapping and conflict between its articles. This paper mainly adopts the comparative analyzing method to study the provisions and acts on anticipatory breach of contract in Anglo-American Law, the Continental Law, the Convention and the Contract Law of People's Republic of China .The full paper is divided into five parts totally including the preface, three special subjects and conclusion.Preface part: The author firstly presents her writing background and the reason of composing this paper and then briefly describes the main problems that will be resolved in this paper.The first part: The basis of jurisprudence . of anticipatory breach of contract. To give readers a general understanding of anticipatory breach of contract, the author divides the first part into four sections discussing the origin, the legal nature , the types , and the legal value of the anticipatory breach of contract. This part's main contents are as follows. Anticipatory breach of contract is a special concept in Anglo-American Law, words that currently presented in books and papers in China, such as breach of contract beforeperforming, breach of contract in advance, breach of contract before the debt's expiration , and anticipatory violation of agreement etc, they all have a complete same meaning with the term " breach of contract in anticipation ". They are all the English term 昦nticipatory breach of contract's Chinese translation. But the author finds out that only "breach of contract in anticipation" is the most suitable Chinese translation for the English term anticipatory breach of contract after carefully studying the originating process of the anticipatory breach of contract.The legal nature of anticipatory breach of contract is different from actual breach of contract's. Because what the party of anticipatory breach of contract violates is the other party's anticipatory legal right rather than practical legal right. The classifications of anticipatory breach of contract are different in different laws. It is classified into anticipatory repudiation and diminished expectation in Anglo-American Law according to that the party of anticipatory breach of contract is subjectively not wish to or objectively can't perform the contract, which are also called explicit anticipatory breach of contract and implicit anticipatory breach of contract by some Chinese scholars. However, it is classified into fundamental anticipatory breach of contract and non-fundamental anticipatory breach of contract in the Convention according to the different degree of different breaches of contract . The establishment of the system of anticipatory breach of contract makes the scope of obligation of breach of contract get a more scientific definition , and it can benefit the balance of both parties' economical profits and the realization of the trustworthiness principle in bargains. The above contents constituted the first part of the paper.The second part: Legal confirmation of anticipatory breach of contract. In this part including four... |
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