English Contract Right To Terminate The Exercise Of A Comparative Study

As the foundation of common law system, the English law is of great significance.Britain is one of the countries with a long history in international trade and navigation.After decades of legal practices, a set of optimal contract law theories have come into being which comply with the international trade wonderfully.Among the key issues of contract law, discharge of contract is of great value because it affects the parties interest deeply.Thus,the author is determined to take the comparative study of discharge as the thesis's title.And the author hopes what he studies here can be helpful to the optimization of discharge system in our country.The thesis is divided into seven sections.In the introduction section,the author stresses the value of the thesis.With China's entry into World Trade Oganization,more and more foreign enterprises swarm into China.Meanwhile, the government has been loosing its control on foreign trade,which means more Chinese enterprises will be engaged into foreign trade.As the foreign trade grows deeper and deeper, the legal exchange appears greatly valuable.Thus, the author holds that to make comparative study between China and advanced countries is of great importance.It is helpful to both the optimization of our country's legislation and the smooth operation of foreign trade.The second section mainly introduces the differences of concept and nature of discharge between China and Britain. On one side, it clarifies the differences between discharge and other related concepts,such as rescinsion, termination and discharge by condition subsequent.Here the connotation of discharge is confined accurately and it makes a good preparation for further study;on the other side, it emphasizes the differences of nature of discharge. The nature of discharge varies in China and Britain for their different legal traditions.IVThe third section mainly introduces the differences of conditions of discharge between China and Britain.Discharge amounts to the end of bargain and all efforts of the parties become a writ in water. Because of its great impact on the parties' interest, both China and Britain lay out unequivocal provisions on discharge to balance the interests between the parties.However, the detailed provisions of discharge of the two countries vary greatly. This thesis is mainly concerned with four conditions:Firstly,discharge by breach. The author analyzes the various understandings on the concept of breach, anticipatory breach and factual breach. In British law, the terms of contract is traditionally divided into warranty and condition. According to this classification, whether the innocent party can discharge the contract depends on what kind of term has been breached by the party in default. If the term is a condition, the innocent party can discharge the contract, even though the damages may be minimal. If the term is a warranty, the innocent party cannot discharge the contract, even though the damages may be great. Besides the traditional dichotomy of warranty and condition, there is also a kind of term called innominate term.While in Chinese law whether the innocent party can discharge the contract depends on the impact caused by the breach, instead of on the clear cut of terms. Secondly, discharge by performance. Because of the different understanings of the connotation of discharge, performance leads to various results in the two nations. In British law, discharge is taken as one of the conditions of discharge; in Chinese law, performance will not lead to the discharge of contract. Thirdly, discharge by agreement. The two nations hold different opinions on the nature of discharge by agreement although both of them admit that the parties can discharge contract by agreement. According to the opinions of Chinese scholars, discharge by agreement is not the true discharge and the rules about discharge should not be applied to it. Fourthly, discharge by frustration. The detailed provisions vary greatly although both the two nations admit that contact can be discharged by the operation of ex...