The termination by the breaching party constitutes not only a new frontier of legal systems but also a cross-boundary vortex,exerting profound influence on numerous legal regimes.In terms of the"premise",it is necessary to abandon contract deadlock that lacks a genuinely unique core;in terms of"concepts",it calls for a thorough reform and absorption of efficient breach theory;regarding the"key mechanism",the focus should be on the relationship between termination by the breaching party,impos-sibility of performance,and duty of mitigation;and as for the"framework",the essential distinction be-tween termination by the breaching party and the statutory termination right of the non-breaching party must be clarified,and a hierarchical tolerance system should be constructed in conjunction with other re-lated institutions.Consequently,the previously narrow views on efficiency shall be abandoned,but the vortex effect of the more substantive efficiency can still be pursued.At the same time,the intrusion of termination by the breaching party provides a profound opportunity for reflection on issues such as the generalization of impossibility of performance,the spiral escalation between impossibility of performance and specific performance defense,and the excessive demands on creditors under the traditional duty of mitigation.Structurally,the termination by the breaching party should refuse to"extract"constitutive elements such as the way of exercising and the time of effect from the statutory termination right of the non-breaching party through path dependence,and reject to unilaterally elevate its threshold in a"argu-mentum a minore ad maius"manner by using the latter as a benchmark.However,due to the adoption of a hierarchical structure,in certain types of cases,the termination by the breaching party"resembles"the statutory termination right in certain prescriptive aspects,and links to many other regimes.Such multifaceted approach expands a new frontier.
Termination by the Breaching PartyEfficient BreachImpossibility of PerformanceDuty of MitigationJurisprudential Positivism
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维普
