| The theory of anticipatory breach of contract is an important part in common law system. It provides a better protection for the creditor by its ingenious design. This article discusses the theory anticipatory breach of contract in common law from the comparative sight and at the same time, it also discusses the relative systems in international treaty and civil law in order to review the essence of anticipatory breach of contract from various sight of deep analysis and comparison. It also discusses the current items in the contract law of China upon it. In order to put forward a proposal to strengthen the anticipatory breach of contract for the contract laws of our country to protect the rights of both parties and protect the business.It can be concluded in the laws of some countries that the anticipatory breach of contract can be divided into two parts, express anticipatory breach of contract and implied anticipatory breach of contract. And they are different from constitutive condition and legal remedy. This article analysis and compares them deeply and concludes that it shall at least satisfied the following four elements so that it can be constructed as anticipatory breach of contract.The breach happens after the contract successfully be established and before the perform time of the contract.The breach party shall clearly and surely express the will of not perform the obligation concluded in the contract.The non-performance of the obligation of the contract expressed by the breach party has to be the main obligation of the contract. The breach of the breach party shall have no certain reason.And at the same time, the other party of the contract gets the remedy right of choosing accept or refuse the express anticipatory breach of contract from the other party. This choices will also bring himself different results. Compare with express anticipatory breach of contract, the standard of judgment of imply anticipatory breach of contract is much more different to decide. There are two standards exist. The standards, which limit the subjective composition much, represented by the 71st item of the International Goods Selling Contract Treaty of the United Nations is more acceptable than NO.2-609 of unified commercial code, U.C.C. To be the two parts of the anticipatory breach of contract system, express anticipatory breach of contract and implied anticipatory breach of contract have the same points, the they have great different among the constitutive of breach, the subjective sight of the breach party remedy method, and so on. None of them above can be neglected.The civil law system also designs a general protection system of creditor's interest, but it differs greatly from the anticipatory breach of contract in the common law system. The counter argument right of simultaneous performance differs manifestly from the anticipatory breach of contract from exercise conditions, reasons, constitutive conditions, the nature of the system and remedies to the ultimate value.By a series of comparison, we can find the characters and advantages of anticipatory breach of contract clearly. I also think that the meaning and value of the anticipatory breach of contract can only be reflected when we protect the aggrieved completely from the following aspects: canceling the contract, termination of performance, waiting for performance, stopping performance, asking for performance guarantee and so on.We can confirm that the invitation of the anticipatory breach theory is and absorption and reference of successful experiences of foreign countries and different legal systems, it reflects the composition of the two legal systems in the world economic integration, and it is in keeping with the nature of the development of law. However, in the concrete regulations, there are some defects such as the constitutive conditions are not clear, the adoption limit of the implied anticipatory breach is narrow and not clear, the adoption of anticipatory breach is confused with uneasy counter argument right, the remedi... |
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