Anticipatory Breach and the Right to Specific Performance
When a debtor is in anticipatory breach,it is controversial in theory and judicial practice whether a creditor can exercise the right to specific performance before performance is due.If the view that the creditor's right to specific performance is accelerated is adopted,it will undermine the correlation between the time of performance and the contract price,and infringe the debtor's interest in the use of the subject matter before the time for performance is due.Differential treatment of the right to specific performance and the right to damages is justified.The right to restitution arising after the termination of a contract does not constitute an acceleration of the right to specific performance.The Supreme People's Court's judicial policy of accelerating of the date of maturity for contracts where one party has already fully performed is inappropriate.The creditor can be sufficiently protected through the institution of action for future performance and preser-vation,and there is no need to accelerate the right to specific performance.Article 673 of the Civil Code stip-ulates that"call in the loan prior to its due date",Article 408 stipulates that"the mortgagee is entitled to re-quest the debtor to pay off the debt before it is due",Article 634 stipulates that"the seller may request the buyer to pay the total sum"and Article 752 stipulates that"the lessor may request full payment of the rent".These provisions should be interpreted either as the creditor's right to restitution arising after the termination of the contract or as the creditor's right to bring an action for future performance.
Anticipatory BreachRight to Specific PerformanceTime of PerformanceAcceleration of the Date of MaturityAction for Future Performance
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