Breach Of Contract Rescission Of The System Building

Traditional contract law refers that, in termination of the contract system, only observant enjoy the right to terminate the contract, the defaulting party has no right to terminate the contract. In the event of a serious breach, the observant party holds the rights to continue the contract or to terminate it, and the defaulting party can only passively accept. However, with the development of social society, the complex of the economic exchanges, and the prominent of the hysteresis nature of laws, just giving the observant the right to terminate the contract cannot meet the needs of social development. Thus, we can safeguard the rights of observant, reflect society’s values on honesty and trustworthiness, and safeguard social fairness and justice. The value is not to balance the interests of both sides, rather than to protect the rights of observant prepensely. This article is set forth that in any circumstances, the right to terminate the contract should be given to the defaulting party, so that the defaulting party can make the right to request the court under certain conditions to get out of the shackles of the contract, and then improve the system of the termination of the contract. This paper is divided into four parts.The first part mainly talks about the validity of the defaulting party to terminate the contract. First, it has avoided the deficiencies of the actual performance principle. All along, the actual performance is the primary principles of our contract system, but with the economic development, the implement the principles of actual flaws become increasingly prominent. Among the provisions of the Contract Law, there is no term that “actual performance” exists, therefore the connotation and the denotation of this concept is in a mist. In addition, the high cost of actual performance and the difficulties of its implementation, difficulty in enforcement proceedings has been a major problem. Meanwhile, to force the defaulting party to obey the contract will definitely lead to a waste of judicial resources. Claims that assigned to the defaulting party to terminate the contract make up the deficiencies for the systematic and institutional on actual performance. Secondly, it is in line with the legislative intent of contract law. The claims protect the legitimate rights and interests; maintain social and economic order, but also to promote the socialist modernization. Again, it contributes to the value of law. We should take substantive justice as a basis, when the market players are in the pursuit of the value of freedom and order. Finally, it is verified by the legislative practice of common law. American contract law jurisprudence has been given the rights to terminate the contract for default request in the event of default, and there are theories to support the effectiveness of breach of contract theory.The second part focuses on the conditions of the defaulting party have the right to terminate the contract. When the defaulting party satisfies these four conditions, which have the right to request the court to terminate the contract: first, the object of the contract are non-monetary obligations; second, the subject of the contract are for non-specific matter; third, the compliance cost is greater than the amount of damages; fourth, the breaching party subjective harmless.The third part focuses on the legal consequences of defaulting party to terminate the contract. Article content discussed from two angles: elimination of damages and contractual rights and obligations. The principle of lifting the continuing contract has retroactive effect, and the non-continuing contract is on the opposite. Damages for defaulting party to terminate the contract should after the principle of full compensation, and to comply with the principle of reasonable foresee ability, but does not include compensation for moral damage. We should take the loss actually incurred by the victim as a basis for calculating the amount of compensation.The fourth part discusses the distinction of the right that defaulting party to terminate the contract and observant distinction to terminate. First, the nature of the two rights is different. The right of defaulting party to terminate the contract is not only a request right, but a procedural right. To exercise their rights, a lawsuit to the court must be mentioned by defaulting party. This lawsuit should statute the limitations applicable system, if exceeding the statute of limitations period, the loss of right to win without losing the right to sue. The right to terminate the contract by the observant party is not only a formed right, but also a substantive right. The contract is terminated legally upon notification reached the opposite party, which does not require the counterparty to a certain behavior. Exceed the right to terminate the exercise period; the eradication of the rights will not exist. Therefore, the observant party cannot use this fundamental rights to a lawsuit requested. Second, there exists a difference between the two applicable conditions. The applicable conditions that the right of defaulting party to request a termination of the contract is under discussed the second part of this article. Due to the differences between the conditions, that the applicable of the right to terminate the contract is also different. Third, the purpose of legislation is different. The former is intended to protect the equal interests of both sides, optimize the allocation of resources, and promote economic progress. The latter is intended to safeguard the legitimate rights and interests of the observant party, maintain security and stability in the transaction.