论预期违约的本质

On the Essence of Anticipatory Breach

预期违约的本质问题一直是学者争论的焦点之一。国外学者就此问题主要有四种理论,即要约承诺理论、不可能履行理论、隐含条款论、保护履行期待理论。笔者认为,预期违约在本质上侵犯的是效力不齐备的现实债权。就特定物买卖合同而言,出卖方的预期违约又同时侵犯了买受方的物权期待权。

The essence of anticipatory breach is one of the problems that the scholars concerned have been debating upon. There have been four main theories on it at home and abroad. On the basis of the theories, the author is of the opinion that anticipatory breach of one contracting party is, in fact, infringing not only the practical creditor’s right of the other party whose validity is imperfect in essence, but also the expectancy right of property in particular condition.