The Application Of Anticipatory Breach Of Contract In Judicial Practice

Anticipatory Breach system is a legal system originated in Anglo-Saxon countries.While this system should be made some modifications when it was introduced into ourcontract law regime according to the needs of our judicial practice. The AnticipatoryBreach system brings a more comprehensive protection to the contracting Parties’legitimate interests. If one Party states that he will not perform its contractualobligations or he can not to continue to perform the contract before the expiration of thecontract performance period, the relative Parties can argue remedy for the breach of thecontract but do not need to wait for the contract expires. The Anticipatory Breachsystem can be a directly applicable way to protect their legitimate rights and interests.However, the Anticipatory Breach system is not perfect enough in our legal system,even started from the beginning of the introduction, that resulting a lot of controversy inboth theory and practice. Among these disputes, controversies arise in issues that themeanings and forms of Anticipatory Breach, the scope of damages, the way of remediesand so on. In order to play a better role of the Anticipatory Breach system, it must berevised and improved. This article starts from the perspective of the AnticipatoryBreach system’s application in judicial practice, focusing on the issues that I foundwhen reading some literatures and other relevant information, specifically including theissues that the definition of the standard of the Anticipatory Breach, the coordinationproblems between the Anticipatory Breach of Contract and the No-accountingobjection right system and the legal consequences of Anticipatory Breach. Based on analyzing these issues, my perspective is that the "People’s Republic of China ContractLaw" Article108should be amended. What’s more, the Anticipatory Breach systemcan replace the Precarious Right to Defense system by improving it. As for the legalconsequences of Anticipatory Breach, I hold the view that the scope of damages forbreach of contract should include the anticipated actual damages, expectation interestsand the costs in preventing expanding losses, and that China should introduceAnticipatory Breach system with the right of revocation. Hope that through analysisand summary in this article, my suggestions can make some little developments to thesystem of Anticipatory Breach, to improve the Anticipatory Breach system play its rolebetter in our judicial practice.This article includes four parts. The first part dealt with the application status ofAnticipatory Breach system in our judicial practice. Trying to analyze the relevantcases in our judicial practice, highlight and summarize the issues;The second part focuses on the issue that what’s the standard of AnticipatoryBreach system. My suggestion put forward though analyzing the standard ofAnticipatory Breach’s deficiencies in our legal system, reference the academic disputesof this topic and combine with the relevant provisions in the common law system;The third part focuses on analyzing the relationship between the AnticipatoryBreach system and the Precarious Right to Defense system. By comparison, getting myconclusion that the improved Anticipatory Breach system can eventually replace thePrecarious Right to Defense system;The fourth part mainly describes the legal consequences of Anticipatory Breachsystem including introduce of its range of damages and the right of revocation. Try toanalyze the insufficient existing rules and propose relevant suggestions to improvethem.