On Anticipatory Breach Of Contract

The system of anticipatory breach of contract originates from the case made by the British Throne Court in 1853 (Hochster v. De La Tour). After developing for 150 years, this form of breach of contract which differentiates from realistic breach of contract and at the same time corresponds with realistic breach of contract has become an important part of the responsibility of contract in common law system. This distillate of legislation has been absorbed by many countries' legislations and the United Nations Convention on Contracts for the International Sale of Goods (1980). With the common law system and the code law system infiltrating, the system of anticipatory breach of contract is also adopted by the countries with code law system. The Contract Law of People's Republic of China issued on the fifteenth, March, in 1999 introduced the system of anticipatory breach of contract while inheriting the basic frame and system of the code law system. Meanwhile, China's Contract law has done some corresponding adjustments according to the situation of our country. As a result, China's Contract law can be regarded as a great advancement in the legislation. As the system of anticipatory breach of contract embodies the legal principle of justice, benefit and security, it has taken on the extremely important practical significance to balance the interests of the involved parties and regulate the exchange order, and it is very necessary to do full research on anticipatory breach in expectation that this system can play a more positive role in our socialist market economy. This paper first makes a research on the source and development of the system of anticipatory breach, adopts the comparative analyzing method to study the United Nations Convention on Contracts for the International Sale of Goods (1980), the main regulations of common law system and the corresponding regulations in the Contract Law of People's Republic of China, and analyses their characteristics and aims to point out her own opinion on the problem of how to understand the distillate of the system of anticipatory breach of contract and apply it properly.This paper is divided into five parts totally including the preface, four sections.Preface part: The author first introduces a case which she met in the judicial practice, and proposes correlative legal problems that need to be resolved in the paper.The first part: The author first introduces two cases which happened in English in the 19th century, and illustrates the process of how the system of anticipatory breach of contract came into being. Subsequently, the author introduces main legislations on the system of anticipatory breach of contract in foreign countries, including correlative articles in Uniform Commercial Code of the United States (1952) and the United Nations Convention on Contracts for the International Sale of Goods (1980), and compares the two legislations above-mentioned on following aspects: the methods to differentiate different types of anticipatory breach of contract, judging standards, deadline of providing the guarantee to carry out the contract and relief measures and so on..The second part: The author illustrates how the system of anticipatory breach of contract was introduced to our country, discusses, analyses and evaluates concretely theoretic basic and legislation value in expectation of explaining practical significance of establishing the system of anticipatory breach of contract. The third part: The paper makes an all-around introduction on the system of anticipatory breach of contract, analyses the legal characteristics, forms of the system and the conditions to apply the system, discusses the judging standards of anticipatory breach of contract, and designs different relief measures against different consequences of anticipatory breach of contract.The forth part: The author points out some suggestions on how to set up and improve the system of anticipatory breach of contract in our country. The paper first compares the differences of the system of anticipatory breach of contract between our country and the common law system, then analyses the differences between anticipatory breach of contract and other relative concepts (such as realistic breach of contract, renunciation, unsafe right of defense and so on); Finally, the author point out her own opinions about some problem that should be noticed when understanding and applying properly the system of anticipatory breach of contract.