A Comparative Study On Anticipatory Breach System Of Ameirca And China

In real life,there is a performance period in some contracts which are notnecessary to be closed out immediately, in this period, a dangerous situation reallyexists that one of the parties of the contract may refuse to perform the contractobligations based on his own interests or by considering some objective factors.Thetraditional civil law mainly protect the interests of parties in the time when thecontract had been concluded.At this time,when one of the parties refuse toperformance the contract,he should be liable for breach of contract. In fact, that oneof the parties of the contract refuse to perform contract obligations before the contractis performed is also harmful to the expectation interest of the other party. By this timeif the other party concerned can’t get judicial relief in time,he have to wait for thearrival of the time limit for performance to get it according to liability for breach ofcontract, this is disadvantageous to protect the legitimate interests of the parties tothe contract. So the rule of anticipatory breach of contract was created by the caseof Hochster v De La Tour in British in1853,and then,it was developed constantly.TheAmerican law of contract originated from Britain’s contract common law,so the ruleof anticipatory breach was introduced into the the law of contract of America, and itwas admitted by all states of America except Massachusetts. In1949, after a longtime of drafting and discussed, the " Uniform Commercial Code "(UCC)wasformally published by ALI and NCCUSL,the rule of anticipatory breach is writteninto UCC and is developed more specific. The rule of anticipatory repudiation isformulated in UCC2-609,Its constitutive requirements and legal consequences iswritten in detail.The rule of right to adequete assurance is formulated inUCC2-610.This rule has innovation in the practical significance. The UCC only canbe for the Contract of the sale of goods,but"Restatement (second)of Contracts"makethe rule of anticipatory breach can be used for any contract. In1999,by the efforts of many experts and scholars in the law of civil law, the anticipatory breach system waswritten in our "Contract Law", and this make our country’s breach system better. It isa big breakthrough to us.But compared to the the anticipatory breach system of theAmerican Law of Contract,the anticipatory breach system of our "ContractLaw"have many defects and shortcomings. In order to make up for these defects andshortcomings, I wrote this paper, using the method of comparison especially themethod of comparison of real case. I hope this paper may provide some suggestionsfor improving the anticipatory breach system of our "Contract Law".Many scholars in our country studied the origin and the development of theanticipatory breach system, but few writings referred to the concept differentiates ofthe anticipatory breach, in this paper, by studying the concept differentiates ofanticipatory breach,I find that the foundation of the existence and the development ofthe anticipatory breach system is that one of the parties to the contract refused toperform his obligation. Though now there are some comparison research of theanticipatory breach system, most are in the theoretical level, few works docomparative study through real case. However, the case law is the key link in theAmerican law of contract,so to make comparative study through the real case is moreconvincing, and easier to find out problems, and then solve the problems. So, I makea comparative analysis through the case from the anticipatory breach system ofAmerica and the anticipatory breach system of China in detail in this paper. In China,the anticipatory breach system usually is divided into express anticipatory breach ofcontract and implied anticipatory breach of contract, and the rule of anticipatorybreach of the United States include the rule of anticipatory repudiation and the rule ofright to adequete assurance. Express anticipatory breach of contract is similar to therule of anticipatory repudiation, through comparison of the cases (a Chinese case anda American case)which have same focus,we can find that express anticipatory breachexist the problems such as the definition is not clear, constitutive requirements andthe way of relief is unclear, at the same time, the contract law in China without theregulation that the party who refuse to perform the obligation of the contract canwithdrawal anticipatory breach,it does not accord with the principle of contractfreedom and the principle of trade-encourage of Chinese"Contract Law"and thus I put forward some improvement suggestions according to these problems. Also, for theimplied anticipatory breach,compared with the rule of right to adequete assurance,there is also unclear definition, and the way of relief is unclea,but that the problem ofconstituents requirements of the implied anticipatory breach is difficult to determineis rather important,I thinks that we can modify it refer to the rule of right to adequeteassurance to make it better.