Anticipatory Breach Research Articles

Juridical Consequences of Anticipatory Breach as a Form of Breach of a Contract

Default is a condition in which one of the parties does not carry out or fulfill obligations to the other party as specified in an agreement. In addition, there are several forms of default: not doing something at all, doing something but it is too late, doing something only partially, and doing something prohibited. The concept, the forms, and the consequences of default are often encountered in various literature and legal experts' opinions, unlike the concept of Anticipatory Breach, which is a form of breach of contract/default that exists universally in contract law. In Indonesia, no positive legal provisions accommodate the Anticipatory Breach concept in the form of default. Its nonexistence becomes interesting from the point of view of contract law, where sometimes the parties to the agreement directly or indirectly commit a form of anticipatory breach in implementing the agreement. So that this will raise a question how the impact of an anticipatory breach on the sustainability and implementation of the agreement that the parties have made.

The right to avoid the international sale of goods contract: Comparison of Viet Nam to CISG and PICC

Foreign trade is an indispensable activity in the globalization era. Researching the liabilities of parties in performing the sale contracts and the avoidance right of parties in the contracts is a vital issue. Therefore, this article compared Vietnamese Commercial Law 2005 with the United Nations Convention for the International Sale of Goods (CISG) and Principles of International Commercial Contracts (PICC) regarding the avoidance of sale contracts, including the three aspects, fundamental breach, failure in performance obligations of contract at the end of adding time, and anticipatory breach. The findings not only enable Vietnamese merchants to master international rules in establishing foreign trading but also show differences and similarities between Vietnamese law and international rules. By doing that, this article puts forward some implications for rebuilding the definition of “fundamental breach” in Vietnamese commercial law. Also, this paper suggested that the avoidance clause of the Vietnamese law should include the claim to terminate the agreement of the innocent party due to the non-performance party’s failure to fulfill contractual duties at the end of adding time, and the other party will be constituted an “anticipatory breach”.

CISG하에서 예상되는 계약위반과 법적보호에 관한 고찰

Purpose – This research aims to explore the practical application of anticipatory breaches in international sale contracts, examine the legal framework, and analyze the impact on the parties involved. Design/Methodology/Approach – The research methodology involves analyzing a case study in which decisions were made applying articles 71, 72, and 73 of the CISG, which govern the issue of an anticipatory breach of contract. Findings – The findings suggest that a party intending to suspend its obligations or terminate a contract for an anticipatory breach must present objective evidence. However, if there are suspicions, but it is difficult to submit evidence, the party may, by notice, request the other party provide appropriate security for the performance of the contract. If the other party does not provide adequate security, that fact could be used as evidence. Research Implications – The anticipatory breach provisions set out in articles 71, 72, and 73 of the CISG help to adjust potential damages and allow both parties to take effective measures in case of a potential breach of contract. It may be necessary for both sellers and buyers to take effective measures without waiting until the breach materializes on the due date. The originality of the research lies in its examination of the practical application and legal framework of anticipatory breach, and its impact on the parties involved in international sale contracts.

Rules Governing Anticipatory Breach of Contract Under the Vienna Convention on International Sales

Following the descriptive analytical approach, this research addresses the rules governing the anticipatory breach of the contract under the United Nations Convention on Contracts for the International Sale of Goods (Vienna, 1980) (CISG). The first section of this paper presents the definition of anticipatory breach. The second section introduced the most important options granted to the parties to contract if the principle of anticipatory breach is performed. The problem of the study lies in showing the adequacy of the legal texts governing anticipatory breach under the CISG and an indication of the extent to which the agreement achieves a balance of interests between the contracting parties. The results showed that anticipatory breach is a principle that applies if one party is expected to fail to fulfil his contractual obligations to another party within the due date due to experiencing an economic crisis.

Pravo na suspendovanje izvršenja obaveze usled anticipativne povrede ugovora o međunarodnoj prodaji robe

In this paper, the author analyzes the provisions of the UN Convention on Contracts for the International Sale of Goods (CISG) which regulate the legal remedies available to contracting parties in case of anticipatory breach of contract. Anticipatory or presumed breach of contract implies a situation when one contracting party, on the basis of objective indicators, assumes that the other party will not perform its obligation. In this regard, the CISG provides for two legal remedies available to the contractual party that anticipates the breach of contract: a) to suspend the performance of its obligation, and b) to terminate the contract. This paper specifically analyzes the provisions of Article 71 of the CISG, which governs the right of a contracting party to suspend the performance of its obligation. Article 71 CISG authorizes a seller or a buyer to suspend performance of its obligations under the sales contract if a party is unlikely to receive a substantial part of the counter-performance promised by the other party. The suspending party does not breach the contract if the suspension is rightful. However, if the suspension is not authorized by Article 71 CISG, the suspending party will breach the contract when it fails to perform its obligations. A party may suspend the performance of its obligations if, after the conclusion of the contract, it becomes apparent that the other party will not perform a substantial part of its obligations as a result of a serious deficiency in the party's ability to perform, or the party's creditworthiness, or the party's conduct in preparing to perform or in performing the contract. The right to suspend perfomance under Article 71 CISG is to be distinguished from the right to avoid the contract. Unlike the contract avoidance, which terminates the obligations of the parties, the suspension of contractual obligations recognizes that the contract continues and encourages mutual reassurance that both parties will perform. If the seller has already dispatched the goods, he may prevent the handing over of the goods to the buyer even though the buyer holds a document which entitles him to obtain the goods. This relates only to the rights in the goods as between the buyer and the seller. A party suspending performance, either before or after dispatching the goods, must immediately give notice of suspension to the other party, and must continue with performance if the other party provides adequate assurance of his performance.

The Harmonisation of Shariah and Civil Law in the Area of Contract with Special Reference to the Remedies for Anticipatory Breach of Contract

The paper revealed that the contract law at the conceptual level is substantially similar in common law, civil law and Sharīah to the extent that the writers of Islamic law of contract do not explore, especially in the area of remedies for anticipatory breach of contractual obligations, beyond the boundaries of common law and civil law systems. However, the differences can be found in the application of the remedies. Thus, this paper suggests a method which can be employed to harmonise the area of divergence among these systems of law. Similarly, in the aspect of remedies for breach of contractual obligations, the research recommends that, in a scenario whereby damages are the only remedy to remedy anticipatory breach of contractual obligations, it should be on the ground of non-commitment of the breaker and not on the ground of expectation interest of performing party. The qualitative research methodology is utilised and the data gathered from the valuable literature of the Muslim and western writers were employed to accomplish the study.

Rationalizing anticipatory breach in Emirati law: A comparative legal study with English law

The Dubai Court of Cassation ruled a new trend in 2013 by creating the principle of anticipatory breach in a real estate appeal in Emirati law despite the fact that no similar doctrine is known to exist under this law. This doctrine is found in common law legal systems; it authorizes the innocent party to terminate the contract and sue for damages if there are serious grounds to believe that the other party will not perform his future obligations, even though the time of this performance is not yet due. UAE law, and likewise French law, recognizes the principle of an “actual” breach of contract; it must be a “present” to invoke the remedies of the agreement. This paper is meant to detect which bases the Dubai Court of Cassation relied on in the assessment of its decision in comparison with the nature of this doctrine (English law). It finally recommends the insertion of this doctrine in the general principles of contract law provided in the law of civil transactions with specific conditions and procedures.

Analysis of Anticipatory Breach and Unsafe Right of Defense

The unsafe right of defense is the system of the civil law system, and the anticipatory breach system is a unique system developed by the British and American law departments according to the jurisprudence. Both institutions are stipulated in the Civil Code, issued in 2020. The establishment of the unsafe right of defense system originated from the European law system. However, the establishment of the anticipatory breach system originated from the standard law system. The two are to reduce the losses caused by one party's default to the other party. At present, countries have introduced both systems, such as the introduction of France and Germany and the anticipatory breach system in the United States. Both institutions are of great practical significance in civil Law.

Analysis of Anticipatory Breach and Unsafe Right of Defense

Analysis of Anticipatory Breach and Unsafe Right of Defense

Remedies for Anticipatory Breach of Contract under the United Nations Convention on Contracts for the International Sale of Goods and Implications on Korean Civil Code

Remedies for Anticipatory Breach of Contract under the United Nations Convention on Contracts for the International Sale of Goods and Implications on Korean Civil Code

BREACH OF CONTRACT AS ONE OF THE GROUNDS FOR TERMINATION OF THE CONTRACT OF CARRIAGE OF GOODS BY SEA

Key words: a contract of carriage of goods by sea, termination of contract, terms of contract, repudiatory breach, anticipatory breach

La suspensión del cumplimiento: comparación entre la excepción por inseguridad (o la excepción por incertidumbre), la exceptio non adimpleti contractus y el incumplimiento anticipado

In Chinese Contract Law, the defense of insecurity is an important legal system governing remedies for prospective non-performance, this system also exists in other countries of the civil law. Besides the defense of insecurity, there are other similar systems governing remedies for prospective non-performance: the exceptio non adimpleti contractus and the anticipatory breach. Since they have some similarities in the requirements for their application and legal effects, it is worth making an effort to clarify their relationship. This article shows the distinction between these systems.

Overlap of Termination Terms and Principles of Contract Law: The Toba Trading Case

A buyer company has an advance payment stuck with the seller company and acts cautiously in not paying further till they get control over the goods. Claiming this to be a breach, the seller terminates the contract and makes claim for the damages. The seller picks all legal points it could in the routine business practices to escape the unfortunate situation. The judgment in the Toba Trade Case gives a comprehensive view of several legal themes including, payment and delivery, variation of contract, termination, anticipatory breach, award of damages and unjust enrichment.

Anticipatory Breach: An International Comparison of an Innocent Party's Right to Terminate

As Lord Mustill observed in relation to anticipatory breach, ‘the common law has never succeeded in finding a solution which is both theoretically sound and capable of producing sensible results in practice’. This has certainly been the case with the courts’ responses to anticipatory breach not only in Australia but also in the United Kingdom, United States and Singapore. The common law origins of the doctrine have inevitably created a sometimes convoluted and often contradictory set of legal principles in relation to the executed contracts exception, mitigation of loss and the ‘ready, willing and able’ principle. International instruments have attempted to provide clarity to this complex area of law but their effectiveness is limited by the refusal of countries such as the United Kingdom to ratify the Convention and the reluctance of contract drafters to rely on international law. The doctrine of anticipatory breach ultimately requires revision and clarification by the courts in order to provide increased certainty to this presently highly uncertain area of law.

대만민법의 이행거절(拒絶給付)

대만민법의 이행거절(拒絶給付)

不安抗辩权与预期违约之比较研究

不安抗辩权与预期违约之比较研究

국제물품매매계약에 관한 UN협약 상 이행기 전 계약위반 법리에 관한 연구 : 역사적 제도주의와 진화적 관점을 중심으로

비엔나협약 상의 ‘이행기 전 계약위반 법리’는, 계약체결 후 이행기까지를 공백상태로 인식해온 대륙법계 국가에는 매우 낯선 입법이다. 더불어 비엔나협약 성안당시 광범위한 지지를 보냈던 제 3세계 국가들의 맹렬한 반대에 부딪힌 입법이기도 하다. 이들에게 본 법리는, 시장의 주도권을 가진 계약당사자가 계약을 해체하고자 한다면, 언제든 사용할 수 있는 구밀복검(口蜜腹劍)에 다름 아니었던 것이다.BR 하지만 이들의 선입견과는 달리, 본 법리는 ‘이행거절의 명백한 의사표시’가 있거나 혹은 ‘이에 준’하는 경우, 계약해제를 기초로 발생한 손해를 전보하고, 계약당사자 쌍방이 신속히 시장으로 복귀할 수 있도록 돕는 입법이라 하겠다.BR 본 법리는, 19세기 영국의 Hochster v. De la Tour 사건, 미국의 Dingley v. Oler 사건에서 처음 논의되었다. 20세기 초까지 판례법에 의한 법리발전을 거듭하던 양국은, 1932년 제 1차 리스테이트먼트가 편찬되면서 각자 다른 진화과정을 겪게 된다. 영국은 판례법 발전에 기댄 채 성문화과정을 거치지 않은 반면, 미국은 연성법 형식의 성문화 과정을 거듭하게 된 것이다. 제정/제 1차 수정 통일상법전 제 2편(1952/1958), 제 2차 리스테이트먼트(1981), 제 2차 수정 통일상법전 제 2편(2002)이 바로 그 증거다.BR 이에 본 논고는, 상기한 입법의 제도사적·비교법적 논의를 진행함으로써, 본 법리가 시대적 흐름에 따라 개념의 점증과정을 거치고 있음을 발견하게 된다. 더불어 본 논고는, 1980년 채택된 비엔나협약이 이러한 진화적 일관성의 예외임을 분석하게 된다. 특히 비엔나협약 상의 이행기 전 계약위반은, 법률요건 차원에서는 19세기 영국판례의 정도, 법률효과 차원에서는 제정/제 1차 수정 통일상법전 제 2편의 정도에 달하는 진화가 있었음을 도출하게 된다.BR 이러한 입법적 ‘뒤틀림’에 대해 본 논고는, “첫 번째로, (법률요건 차원에서)명백한 이행거절 의사표시에 준하는 경우가 무엇인지 한정·열거하고, 계약위반당사자의 ‘철회권’을 명문화하는 한편, 비엔나 협약 제 72조 제 2항의 삭제”를 주장하고 있으며, “두 번째로, (법률효과 차원에서)인과관계 존부에 따른 손해배상 면책·제한규정을 도입하는 한편, 제 71조 제 3항에 ‘상거래 관행’을 명문화”하도록 요구하고 있다.BR 더불어 본 논고는, 이러한 법리의 현대화가 국제상사계약의 현실서, 과수요-저수요의 파동 폭을 줄여, 당사자 간의 거래비용을 효과적으로 감소시킬 것이라 분석하고 있다. 마지막으로 본 논고는, 이행기 전 계약위반의 법리를 역사적 제도주의 관점으로 재 해설(再 解說)한 본 논고의 분석틀이, 제도의 과학적 진화를 촉진시키는 데 도움이 될 것이라 주장하고 있다.

The curious case of an arbitration with two annulment courts: comments on the YPF saga

This article deals with the jurisdictional and substantive issues of a Latin American multi-party, multi-contract arbitration, related to a dispute arising out of a contract for the international sale of natural gas, which contained an arbitration agreement, calling for ICC arbitration in Montevideo. This arbitration agreement contained a clause in which the parties expressly agreed to apply Argentine arbitration law to annulment procedures and granted exclusive jurisdiction to the Argentine courts to hear any challenge to the prospective award. Eventually, there was a debate on the validity of this clause and the Argentine and Uruguayan courts claimed to have exclusive jurisdiction to hear annulment petitions. This article addresses the different approaches under which this issue can be analysed, and concludes that the parties’ choice of forum should be respected. Regarding the substantive issues, one part of the case that involved the claimant and two of the respondents was governed by the Contracts for the International Sale of Goods (CISG).1 Among other aspects, this article explains that the standard to consider an anticipatory breach is very high, so that mere manifestations that the basis of the contract has been affected are not enough to consider such kind of breach. Moreover, it explains that the intention of the breaching party is not a relevant factor to determine compensation, since the CISG is based on an objective regime, in which foreseeability is the relevant factor.

Instytucja antycypowanego niewykonania zobowiązania w prawie polskim w kontekście doktryny anticipatorybreach of contract – o konstrukcji art. 492(1) kodeksu cywilnego (analiza prawno-porównawcza)

Various aspects of the anticipated (expected) breach of duties under the contractual relationship have been the subject of discussion for years on the basis of the Polish Civil Code of 1964, which had not provide a general legal basis entitling the creditor to terminate the contract before it becomes due. This situation has changed with the entry of the amendment of May 30, 2014 – implementation of Article. 492 1 of the Civil Code was an important legislative step, which requires a comprehensive comment. A comprehensive linguistic and functional analysis of the said provision, regulating an inevitable non-performance, however, requires a broader view, especially from the perspective of the common law system (as an institution of Anglo-Saxon origin) or other international regulations (which are a source of inspiration for the Polish legislator). Both legal and comparative verification not only facilitates a fuller understanding of the nature of the anticipatory breach institution itself, but above all, allows to realize the consequences and a number of contentious issues involving the practical application of the institution of art. 492 1 of the Civil Code from the perspective of participants of the legal and economic market.

Instytucja antycypowanego niewykonania zobowiązania w prawie polskim w kontekście doktryny anticipatorybreach of contract – o konstrukcji art. 492(1) kodeksu cywilnego (analiza prawno-porównawcza)

Various aspects of the anticipated (expected) breach of obligations under a contractual relationship have long been the subject of discussion with respect to the Polish Civil Code of 1964, which does not provide a general legal basis entitling the creditor to terminate the contract before it becomes due. This situation has changed with the entry of the amendment of May 30, 2014, as the introduction of Art. 4921 of the Civil Code was an important legislative step, which requires a comprehensive comment. A comprehensive linguistic and functional analysis of the said provision, regulating an inevitable non-performance, however, requires a broader view, especially from the perspective of the common law system (as an institution of Anglo-Saxon origin) or other international regulations (which are a source of inspiration for the Polish legislator). Both legal and comparative verification not only facilitates a fuller understanding of the nature of the anticipatory breach institution itself, but above all, allows one to realize the consequences and a number of contentious issues involving the practical application of the institution of art. 4921 of the Civil Code from the perspective of participants of the legal and economic market.