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Before defaulting system

Author: WuFan
Tutor: LiLi
School: Nanjing Normal University
Course: Civil and Commercial Law
Keywords: anticipatory breach of contract anticipatory repudiation the right to plea of unease diminished expectation
CLC: D923.6
Type: Master's thesis
Year: 2007
Downloads: 130
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Abstract

The contract law should Offer creditors abundant and reasonable protection before the debt fulfilled, no matter what theory it is, there is no objection about this .and it is accepted by common law system and continental law system. When the party repudiates his contract obligation in medium term of their contract, how to give remedies to the aggrieved party, what intensity of the protection can it get. In the common law ,deal it with the doctrine of anticipatory breach , the continent rule is dealt with through the similar rule. This text points out some mistaken ideas and defects in our legislation by analysis relevant regulation in various countries and put forward one’s own suggestion on how to improve regulation. This article is divided into five parts altogether:First of all, the author have explained the general theory of anticipatory breach. The doctrine accepted by various countries is determined by the efficiency, fair and safe principles in it What is the foundation of anticipatory breach? The domestic and international scholars have different opinions, Some think its foundation is to " break a contract actually ", some think that has " aggrieving creditor’s rights of expecting ", and some scholars regard it as " violate the expected rights " Finally, through an analysis of each theory, the author considers that: the theoretical foundation is that breaking a contract " attach to obligation under the honest and trustworthy principle " and expect to lay the essential theoretical foundation for setting-up the anticipatory breach systemThe second part of article discuss the type of anticipatory breach .About this, the domestic scholar’s opinions are inconsistent, mainly there are two kinds of division in the circle of theory, The author classifies it into two types: one is called "anticipatory repudiation", and the other one is "diminished expectation", through the explanation of English meaning, the regulation about division in the two law system and the international convention, besides, by researching and investigation of the legal origin of anticipatory breach .Thus it can lay a foundation for the other contents in the system.The difference in the theoretical foundation and type of anticipatory breach lead to different regulation of the legal consequence. In the third part , the author introduces and compares the legal consequence of anticipatory breach in common law ,continent law and international convention , in order to offer reference to the relevant regulations of our country.In the fourth part of the article, the author gives detailed analysis and comparison to "the right to plea of unease" and "anticipatory breach" and accounts for the meaning and value of the doctrine of anticipatory breach as well as explain the essential distinction ,in further to points out that they can’t be substituted.The fifth part of the article, is mainly discussion on article 94th, article 108th in the contract law of our country , points out its misgivings ,and also analyses the relation between article 94th , 108th and article 68th, 69th, to suggest how to improve the contract law of our country .

Before defaulting system

Abstract

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