On Anticipatory Breach Of Contract

According to the traditional theory of the contract law, the definition of breach is "to violate the obligations given by the contracts" . The debtor doesn' t have to fulfill his/her obligation before the deadline of the performing time, so breach happening only after the time limit is up to logic. If the debtor claims before the performing deadline, that he/she will not fulfill the obligations, or his/her behavior or external conditions suggest the impossibility of fulfilling the obligations in time, then how should the laws go? - To let the creditor wait till the deadline for his compensation, or to set up breach relieve system to avoid more loss for creditors? Common law has set up an anticipatory breach system to prevent the risk mentioned above. On one hand, it has gradually formed a set of law regulations about anticipatory breach in the form of prejudication; on the other hand, it accelerates the development of the law regulation in the form of statute law, thus forming a better anticipatory breach system. This system, which is a great contribution to the world made by Common Law, fully reflects the contract principle of honesty and justice. It plays an important role in balancing the benefit between the debtor and the creditor, solving dissensions about contracts in time to avoid contrived waste of social resources.There is no concept of anticipatory breach in countries with civil law. They hold the opinion that creditors don' t have the right to request for obligation fulfilling before the performing time limit, so there is no occurrence of legal responsibility for not fulfilling the stated obligation. The performing time limit is set up to protect the benefits of the debtor, who can fulfill his/her stated obligation ahead of time while the creditor can not request for ahead-of-time fulfilling. The INSECURE COUNTERPLEAD SYSTEM, one of the civil laws, is similar to the anticipatory breach. Itoriginated from German law and was set up to avoid losses of the court part that fulfilled their obligation firstly. It was regulated by civil codes of each different country with civil law and there are certain differences between the two systems.CONTRACT LAW OF THE PEOPLE'S REPUBLIC OF CHINA, approved on March 15lh, 1999 (call CONTRACT LAW for short) is a great progress we have made on legislation which has inherited the basic frame of the civil law, and meanwhile borrowed the advantage of anticipatory breach system of Common system. The foundation of the anticipatory breach system, "not only equalizes the rights and obligations for both of the two parties, but also avoids the risk of breach induced by anticipatory breach, even eliminates or minimizes the possible loss coursed by anticipatory breach. However, the anticipatory breach system in CONTRACT LAW is not completely what it is in Common Law, compared with which, connotation of the anticipatory breach system in CONTRACT LAW seems more superficial. Demerits exist not only in legislation but also in judicature. Through analyses and researches of both theories and practices, the writer will comment on the anticipatory breach system in CONTRACT LAW of China, and bring forward some related ideas in order to make this system more energetic in the practice of judicature.