Research On The Identifying Of Anticipatory Benefit In The Breach Of Contract

The damages for breach of contract is the most important form of responsibility of breach of contract which refers to the debtor who can not discharge the debt of creditors should undertake the compensation for losses. Mainstream view thinks that the breach of contract damages should include all the loss created by detors. But there is no unified opinion about how can we define the total loss, which factors should be included, and especially the identification of expected benefits. From the legislagives purposes, legislators try to let the detors compensation as almost the same as the actual performance of the contract.In other words, the legislators try to looking forward to the interests of the innocent party compensation to replacing the actual performance. Therefore there is a great significance in theory and practice accurately identifing the anticipatory benefit.In the first part we define and extend the concept of anticipatory benefit. Anticipatory benefit comes from the common law, but it has a counterpart calls Eefuellungssinteresse in civil law. In this part we compare the different definition in common law and the civil law, and we try to discuss the substance of anticipatory benefit.We also compare the anticipatory benefit and similar concepts just like Vertrauensinteresse, the possible benefits, consequential damage etc. Finally, we use the theory of law and economics to describe the justification that the anticipatory benefit should be compensated.In the second part, we discuss the scope and limited rules of anticipatory benefit. Identificating the scope of anticipatory benefit should follow the principle of full compensation. It means that the scope of Anticipatory benefit should conclude all the interests that creditors can expect when they contract if the contract can be normal performance. At the same time, we should prevent overly protecting the observent and restricting the Violators cause it would be violate the principle of equity and justice, and it also cannot improve efficiency from the socio-economic point of view. Thus it is necessary to appropriate limit the scope of anticipatory benefit. The limited rules of anticipatory benefit conclude the rule of "Reasonably foreseeable", the rule of-mitigation of damage, and the rule of certain.In the third part, we introduce the basic calculation of anticipatory benefit. How to calculate the anticipatory benefit of creditors in specific cases is the focus of the basic calculation. The basic formula of anticipatory benefit is that "anticipatory benefit equal loss of revenue add incidental damage add consequential damage minus the compliance costs" referencing the American contract law. As for the specific calculation, there are specific calculation and abstract calculation, agreed calculation and estimation of reference calculation.The fourth part is about the basic prameters in the calculation of anticipatory benefit which are decisive. Time parameter which reflects the time dimension is about when we start calculating the anticipatory benefit. Location parameter which reflects the location dimension is about the value of which location is the standard in the calculation of anticipatory benefit. The subject prameter is about who can be the starting point of the calculation of anticipatory benefit. The last factor is the price parameter. Although the time parameter and location parameter have been largely determine the calculated amounts in a specific time in specific location, a contract has different prices,so there is a great significance about price parameter that choose which price as the standard of the calculation of anticipatory benefit.In the fifth part, we propose legislative proposals to perfect the system of anticipatory benefit in Contract Law of China. It affirmes the legitimacy of anticipatory benefit in Section 113, and it fully supports the agreed calculation of anticipatory benefit in Section 114.However,there are so many problems about identificating the anticipatory benefit and related rules and institutions supporting because of the backward of legislative technique and the short support of theory. So I think we should expand the scope of anticipatory benefit and gradually clear the criteria and modalities of Calculation of anticipatory benefit.