Specific Performance Provided By The Article107of The Contract Law Of PRC

The Article107of the Contract Law of PRC provides the liabilities for breach ofcontract, such as the specific performance, to take remedial measures, as well as thecompensation for damages. China’s theorists generally hold that, the said specificperformance is undoubtedly a liability for breach of contract. However, in accordancewith the corresponding stipulations in foreign countries, most of them do not considerthe specific performance (also referred to as actual performance or enforcedperformance) as one of the liabilities for breach of contract. Meanwhile, regarding thestatus of the specific performance in the system of remedies for breach of contract,theorists also save a lot of controversies. In practice, regarding the application ofspecific performance on contract of intent, different courts hold different opinions.Nowadays, both parties are more likely to enter into a contract of intent, such as aletter of intent, to make an agreement about the future conclusion of the final andformal contract, in order to ensure their trading opportunities and the pre-paymentsfor the transaction costs. With the implementation of the Interpretation of the SupremePeople’s Court on Issues Concerning the Application of Law for the Trial of Cases ofDisputes over Sales Contracts, the legal status of the contract of intent as anindependent contract has been specified, and that means the liability for breach of contract of intent has no longer been the culpa liability but the liability for breach ofcontract. The new judicial interpretation, however, does not provide if the specificperformance should be applied to the breach of contract of intent, in other words, ifthe court could order the breaching party to enter into the final and formal contractbased on the request of the obeying party. In practice, there are a lot of casesconcerning the disputes over contract of intent, and the views of the courts are notentirely consistent. Therefore, I think it necessary to deeply conduct a research onsuch a question, in order to solve the theoretical and the practical problems.The first chapter is started with the general theories of the specific performance.Based on the comparative law analysis method, it is important to re-understand theessential meaning of the specific performance provided by the Article107of theContract Law of PRC, which includes its concept, character (if it is a liability ofbreach of contract) and its sources of legitimacy. In addition, this thesis will alsoprovide a deep analysis of the proper status of the specific performance among all theremedies for breach of contract, as well as its applicable conditions and thecorresponding limitations. On the basis of the discussion of the general theories ofthe specific performance, the second chapter is mainly about the case analysis of theapplication of specific performance on contract of intent. According to several recentjudicial cases in China, it is not difficult to find out that different courts hold differentopinions on such a problem. Therefore, based on the case analysis method, this thesiswill further provide a classification as well as a summary concerning the differentjudgments and the corresponding reasons. And then, combining with the comparativelaw analysis method, this thesis will also provide a detailed analysis concerning thenecessity and reasonability of the application of specific performance on contract ofintent.