期前违约规则若干基本概念探源

The doctrine of anticipatory breach of contract originated from England in mid 19th century, which is followed by the new Contract Law of China adopted in 1999. However, Chinese legal scholars began to know and study this doctrine only after early 1990s. A lot of misunderstandings and confusions exist in the works of Chinese scholars. This article try to clarify a few fundamental concepts concerned. The first issue is the proper Chinese translation and name of “anticipatory breach". By examining the wording of some milestone English cases and the comments of English and American legal scholars, the author argues that the best understanding of “anticipatory" is “before the performance is due", which should be translated into “qiqian" in Chinese. This article also examines the meaning of “repudiation" and “renunciation", and their relationship with “anticipatory breach". Some Chinese scholars believe that, in Anglo-American law, anticipatory breach of contract is classified into express anticipatory breach and implicit anticipatory breach. This article points out the fundamental misunderstanding.