Analysis of Principles of InternationalCommercial Contracts in Non-Performance

• Main Authors: Lee Yi-Ling, 李雅玲
• Other Authors: Chiu Wen-Hui
• Format: Others
• Language: zh-TW
• Published: 2013
• Online Access: http://ndltd.ncl.edu.tw/handle/13472092944942314503

碩士 === 東吳大學 === 法律學系 === 101 === In contract law, a breach of contract is committed when a party without lawful excuse fails or refuses to perform what is due from him under the contract, or performs defectively or incapacitates himself from performing. About the breach mentioned is stated in the following: 1.The question whether or not a particular contract has been breached depends upon the precise construction of the terms of the contract. Many contractual duties are stict. 2.A breach of contract does not automatically bring a contract to an end. A breach of contract gives to the innocent party a right to claim damages and it may give him the additional right to terminate performance of the contract. 3.One contracting party may inform the other party, before the time fixed for performance under the contract, that he will not perform his obligations under the contract. This is called an anticipatory breach of contract, which entitles the innocent party to terminate performance of the contract immediately. Unidroit principles of international commercial contracts 2010，about non-performance mentioned are as follows: 1.Non-performance is defined so as to include all forms of defective performance as well as complete failure to perform. In addition, non-performance includes both non-excused and excused non-performance. 2.In accordance with the general principle of the binding character of the contract, each party should as a rule be entitled to require performance by the other party not only of monetary, but also of non-monetary obligations, assumed by that party. While this is not controversial in civil law countries, common law systems allow enforcement of non-monetary obligations only in special circumstances. 3. Right to terminate the contract dependent on fundamental non-performance, whether in a case of non-performance by one party the other party should have the right to terminate the contract depends upon the weighing of a number of considerations. On the one hand, performance may be so late or so defective that the aggrieved party cannot use it for its intended purpose, or the behaviour of the non-performing party may in other respects be such that the aggrieved party should be permitted to terminate the contract. 4. Right to damages like other remedies, arises from the sole fact of non-performance. It is enough for the aggrieved party simply to prove the non-performance, i.e. that it has not received what it was promised. In particular, it is not necessary in addition to prove that the non-performance was due to the fault of the non-performing party. The degree of difficulty in proving the non-performance will depend upon the content of the obligation and in particular on whether the obligation is one of best efforts or one to achieve a specific result. In the research method, this study was done by "article analysis" and the "depth interview" to find out the theoretical basis of this study, analyzed and summarized, sorting out the findings and recommendations to the purpose. The results obtained in this study through the analysis and comparison are organized as the following recommendations and can be used in future reference . It could be used as a reference for better changes or improvements in contract.