The Research Of Anticipatory Breach

Anticipatory breach of contract is a special form of breach of contract which isindependent of the actual breach of contract. The cause of the anticipatory breachsystem is: the social background is the rapid development of commodity economyrequiring legal system playing a role in rational disposition of resources; the theory isbased on the law of the principle of good faith and fairness, the value of jusitice,efficiency and order, and economic efficient breach of contract. The aim ofanticipatory breach system is to reduce the loss of the observant party and tomaximize the efficiency of the distribution and use of resources. This system isderived from the English case law, developed by American law with the efficiencyvalue being more prominent, and creatively absorbed by the United NationsConvention on the International Sale of Goods (hereinafter referred to as theConvention). The system of anticipatory breach is closely related with the system ofunsafe right of defense, which brought the debate of the two systems. However, theintegration of the two systems in the Convention indicates that they are not black orwhite, and their combination can bring out the best in each other. It is benefit toestablish a fair and efficient market order that our country introduced theanticipatory breach system, while the reasonable rules of the common law can bedrew to the system. Since China is a multiple law state, it can learn from theConvention to combine the system of anticipatory breach and the system of unsaferight of defense to make the two systems function better.This paper is divided into four chapters: The first chapter clarifies the relatedbasic theory of anticipatory breach, and states the definition and the characteristics ofanticipatory breach and theoretical basis of the system by comaring the differenttheories of the different countries, and claiming the theoretical foundation of thesystem from the legal analysis, value analysis and economic analysis perspective.The second chapter compares the advantages and disadvantages and theapplicable effect of the anticipatory breach system of the common law countries and the Convention in order to lay the foundation of the improvement of the contract lawof China in another section below. American law inherited and developed theanticipatory breach system of the English, making the system more agile, moreobjective exercisely, and mitigation rule more economical. The Convention absorbsthe strengths of the common law and the civil law about the anticipatory breachsystem, and the division of the fundamental anticipatory breach non-fundamentalanticipatory embodies the fusion of the concept of the civil law.The third chapter compares the anticipatory breach system and the anticipatorybreach relief system of civil law, summarizes the advantages and disadvantages of thetwo systems and analyzes the reasons of the discrepancy, and refutes the viewpointthat the anticipatory breach system can be replaced by the anticipatory repudiationand unsafe right of defense of civil law. Anticipatory breach contract system andunsafe right of defense system are not black and white, and they cannot replace eachother. Take the Convention for example, the combination of the two systems canmake the anticipatory breach relief system more perfect.The fourth chapter analyzes the present situation of anticipatory breach system ofChina, the defects of the system of Contract Law, and the conflict between theanticipatory breach system and the unsafe right of defense system considering therelated theories and practice in China. It discusses that some advanced rules can bedrew from the common law to improve the regulations of the Contract Law. It isclaimed that the effective fusion of two systems by the Convention can be learned soas to reconstruct the relationship of the two systems and eliminate the contradictionsbetween the two systems.