On The System Of Anticipatory Breach Of International Trade

The anticipatory breach of contract system was first established in Britain in the middle of 19th century, and developed to a complete independent legal system of common law. During the time from the contract taking effect to the completion of its performance, this system could provides good protection for the creditor and make the society source dispatched to the place where it should be. It comes from a British judicial precedent, and was enriched by the Unified commercial code (U.c.c), finally formed a more completed system. The International Goods Selling Contract Treaty of the United Nation also absorbed the essence of the anticipatory breach of contract from the common law, and further developed the 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 unsafe pleading. Compared with the system of right to defense of unsafe pleading, the system of anticipatory breach of contract is better. The contract law of PRC newly-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 thesis 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 the People's Republic of China, and provides some speculation on the developing of P.R.C.'s Contract Law, in order to make the reader acknowledge this system stereoscopically.This thesis includes four parts.The first part: the basic jurisprudence of anticipatory breach of contract. At first express, writer introduced the establishment of the anticipatory breach of contract. The anticipatory repudiation is originated from the precedent of Hochester V De La Teur, and the implied anticipatory breach is originated from the precedent of Synge V singe. Compared with the ordinary breach of contract, we got the character of anticipatory breach of contract. By meanings of comparing different theory and analyzing the economic practice of western country, writer concludes the theory and practical support of anticipatory breach of contract.The second part: the development of anticipatory breach of contract. This part aims to analyze anticipatory breach of contract system completely. At first, introduced the model of this area-"Unified Commercial Code", analyzed the regulation and development of anticipatory breach and the implied anticipatory breach in the Unified commercial code. Analyzed and remarked the clause 71 and 72 of International Goods Selling Contract Treaty of the United Nations. Finally, compared the International Goods Selling Contract Treaty of the United Nations with the Unified Commercial Code. Writer also introduced the international commercial contract code.The third part: comparison between the theory of anticipatory breach of contract and the system of unsafe plea. The civil law has no principle of anticipatory breach, but it regulates the right of pleading during the performance of contract such as the right of pleading of simultaneous performance, and unsafe plea etc, especially speaking, the unsafe plea has many similarity with anticipatory breach. Both of them occur after the execution of an effective contract and before the expiration of performance. The cause of them originates from the danger of one party's prospective refusal and inability to perform obligation. But both of them have various differences in terms of their property, the forming condition, the remedy measures and value aim. As for the value aim, the unsafe plea aims at promoting the actual performance of contract while the value of the doctrine of the anticipatory breach embodies fairness, efficiency and security, its core is the remedy measures. Yet generally speaking, the theory of anticipatory breach is better in protecting the victim's interests than the unsafe plea.The fourth part: anticipatory breach of contract in Contract law of PRC. Chinese contract law has introduced the rate of anticipatory breach which is written in item 2 of article 94 and article 108, this is new development of Chinese contract law. It caters to the needs of Chinese international competition after china works as one of the members of UNCISG. In the meantime, unsafe plea is written in the article 68,which shows that article they can co-exist in one law. However, in terms of judgment criteria, paradox is produced in some details such as the act of transferring property and escaping money. Based on the above analyze, writer provides some speculate on the development of Contract Law, in order to give the reader some advice in commercial practice.