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The Specific Performance In The Remedies For Breach Of Contract

Posted on:2015-01-03Degree:MasterType:Thesis
Country:ChinaCandidate:B YinFull Text:PDF
GTID:2296330467967914Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
Specific performance is a very important remedy for breach of contract, and itcan be ordered by the court to compel the defaulter to carry out his obligations under acontract in accordance with the terms and conditions set out in the contract. Thisarticle intends to improve the specific performance in the remedies for breach ofcontract by discussing the existing law and combining with the other legal rules aboutthe the specific performance.The first part of this article interprets the specific performance of the"ContractLaw"of China and pointes out its problems. Article107of the " Contract Law" hasprovieded that the creditor has the right to choose remedies between the specificperformance and damages with no particular order. Specific performance of themonetary debt and non-monetary debt are provieded by Article109and Article110.Though the provisions of specific performance in the contract law is reasonable insome ways, it still has some demerits. It is not clear that the creditor can choose thespecific performance as the preferred and its applicable conditions,and the restrictionson the availability of specific performance cannot fully protect the interests of thedebtor.The second part of this article discusses the different positions of the specificperformance in two law systems and its reasons. The author believes that it isreasonable to make the specific performance as the first remedy. The specificperformance is the primary remedy in the civil law system but an exceptional one inthe common law, which is may be cuased by the different legal backgrounds such asthe traditional contract theory and the efficient breach. The efficiency factor of valuejudgments is showed in the different policies. The author also believes that the idea of"pacta sunt servanda" in the civil law can maintain the trading morality and promotethe social integrity. The theory of efficient breach is not universal, its role in the reliefof default should be evaluated rationally.The third part of this article focuses on the trends of specific performance.Though lies the tremendous difference of the specific performance between the civil law and the common law in theory, there has a clear trend of learning from each otherin two law systems, which is showed in the CISG and DCFR. On the basis of two lawsystems, the CISG and DCFR set specific performance as the fundamental way in theremedies. The author thinks the remedy of the goods defective performance in theCISG and the exceptions about the specific performance of non-monetary obligationsin the DCGR may be worth learning.According to the text of the previous, in the last part of this article, the writermake some suggestions for the improvement of the specifc performance, and hopethat helps the system of liability for breach of contract in the "Contract Law"of China.
Keywords/Search Tags:Remedies for breach of contract, Specific performance, Efficient breach
PDF Full Text Request
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