A Research On The Remedy System Of Anticipatory Breach

Breach of contract usually refers to actual breach of contract, however, if one ofthe parties breaches a contract before the contract performance period approaches, suchan action will construct an anticipatory breach of the contract. This kind of breach statusis opposite to the actual breach. Anticipatory breach rules are a unique system inCommon Law. Such a legislation essence is absorbed in many countries’ legislation,including China.The purpose of anticipatory breach’s establishment is to avoid the risk that one ofthe parties breaches the contract anticipatorily during the course of contractperformance, decrease the waste of social resources and settle contract disputes,maintain the safety and efficiency of commercial transactions, as well as to offer thevictims legal remedies. The victims may take countermeasures as early as possible toreduce losses, and they may also take such measures as terminating the contracts andclaiming damages, etc., accordingly. Meanwhile, attention should also be paid to theapplication to the rules of reducing losses and contract foreseeability in the liabilityreasoning of anticipatory breach.Concerning the prescription of the anticipatory breach system, the U.S. UniformCommercial Code is the perfect one among the legislation of all nations throughout theworld. There is no systematic prescription on anticipatory breach system in China’sContract Law, and it leads to such a phenomenon that no one knows how to solve thisissue when it occurs in practice. Making a research on anticipatory breach rules is alsoto better perfect China’s Contract Law.The prescription of anticipatory breach is too general, not definite or perfect, so itcannot well protect the parties’ rights and interests, and it also causes difficulty tojudicial operation, nor is it good for the foundation of perfect market transaction order.Making a deeper analysis on the remedies of anticipatory breach, including theprescriptions of British laws and American laws, together with the prescription status ofChina’s Contract Law, this essay puts forward several perfect recommendations, whichare expected to be beneficial to the establishment of China’s anticipatory breach rules.This essay contains three parts:Part one introduces anticipatory breach’s concept and its system value, theclassification of anticipatory breach, including express anticipatory breach and implied anticipatory breach, key components of the two types of anticipatory breach as well asthe differences. Part two introduces the remedies of anticipatory breach in CommonLaw. British anticipatory breach consists of the intention of refusal to perform thecontract and the impossibility of performance caused by the obligor’s act as well as thelegal consequence of anticipatory breach in Britain. The remedies of Americananticipatory breach consist of the remedies of anticipatory repudiation and anticipatoryimpossibility of performance as well as the legal liabilities of anticipatory breach. Thecomparison of anticipatory breach remedies between Britain and the U.S. Part threeintroduces the defects and improvement of anticipatory breach remedy system inChina’s Contract Law. The legislation status and improvement methods concerningChina’s anticipatory breach remedy system.