Application Of Mitigation Rule In Case Of Anticipatory Breach

Mitigation rule,one of the old rules used to limit the scope of damages for breach of contract.Article 114 of the General Principles of Civil Law promulgated in 1986 in our country provided for the first time the Mitigation rule.Article 119 of the Contract Law promulgated in 1999 has been improved and perfected on this basis.In recent years,judicial precedents citing Mitigation rule as the basis for adjudication have gradually increased,but they are limited by the summary of the legislative norms themselves,lack of practical applicable rules,and many disputes and confusion have arisen in judicial application.In particular,the referee has always shown an evasive and hesitant attitude to the application of the rule in the case of Anticipatory breach.The inconsistent application of standards and the mechanical abuse of discretion have greatly reduced the institutional value of the Mitigation rule in judicial application.In this paper,empirical analysis is used as the main method,and the textual interpretation of the legislative norms,system,and purpose is explained,supplemented by comparative analysis and value analysis.The content of the study starts from the specific problems in judicial practice,and focuses on the issues of whether the Mitigation rule apply and how to apply them in the case of Anticipatory breach of contract.In order to conduct a systematic and in-depth study on the convergence and application of Anticipatory breach and Mitigation rule,and to summarize the applicable rules of the Mitigation rule in the case of Anticipatory breach,it provides a useful reference for judicial practice.This paper is divided into three parts,divided into seven chapters.The first part is the first and second chapters,which mainly lead to problems.Through practical observation and analysis of representative cases of the judicial application status of the Mitigation rule,it is concluded that there are problems such as whether the Mitigation rule and the timing of the generation of the duty to mitigate the damage are applied in the Anticipatory breach,and the judgment standards of reasonable measures.After reviewing the legislation,the legislative norms did not clarify the problems in practice,and the operations through the interpretation of the text and the system failed to find answers to the problems.The second part is the third and fourth chapters,which mainly analyzes whether the Mitigation rule apply in the case of Anticipatory breach.Through the analysis of the legal basis,from the perspective of good faith,economic efficiency,and the homogeneity of expected and actual defaults,the Mitigation rule should be applied in the case of Anticipatory breach.In the coordination of rules,the exercise of non-default party relief path options should be restricted,and the balance of benefits should be subject to the Mitigation rule.The third part is the fifth,sixth and seventh chapters,which mainly analyze the specific problems of applying the Mitigation rule in the case of Anticipatory breach.Comparing the rules of the United Kingdom and the United States,China should distinguish between refusal to perform and performance to discuss the time of occurrence of the duty to mitigate the damage.The existence of mitigation measures can be determined by the "if not" rule combined with continued performance.The reasonableness must be determined by the subjective attitude and objective conditions of the non-defaulting party's behavior and the standards should not be too high.The article also summarizes the types of mitigation measures.The key to judging the damages borne by the breaching party is whether the damages are reasonable and not whether the purpose of the damages is achieved.The application of the Mitigation rule will limit the amount of damages,and the scope needs to be calculated accordingly.The activation mode of the Mitigation rul can be applied by the parties or by the judges according to their powers.The defaulting party bears the burden of proof that the non-defaulting party failed to take reasonable measures and caused the loss to expand.The non-defaulting party bears the burden of proof for the amount of the loss and the cost of implementing the mitigation measures.