Once More Unto the Breach: A Comparative Analysis of the Meaning of Breach in Contract Law

The comparative analysis of law has been used to flesh out the commonalities and divergences between different legal systems, legal families, and bodies of law. Legal systems are often grouped or categorized as parts of a given legal tradition. A popular division in legal traditions has been that of the civil versus common law traditions. But such a taxonomy is a bit simplistic since there are numerous and important differences across legal traditions. Most civil law countries can be divided into those of the Germanic and Franco-Romanistic families, whereas Anglo-American law suggests a more holistic view of the common law. In reality, there are significant differences between the English and American common laws of contracts. These differences have become more profound with the modernization of commercial law through the enactment of the American Uniform Commercial Code and its subsequent influence on the development of the American common law of contracts. Comparative contract law has been a longstanding subject of comparative law scholars. This Article continues that line of comparative law research by exploring the mostly unstudied area of the meaning of breach in breach of contract, and its consequences. The Authors come from different parts of the civil-common law divide and the intra-family divide within the civil law tradition, accompanied by a knowledge of the unique civil law system instituted in the People’s Republic of China. Finally, since all five countries subject to this study have adopted the Convention on Contracts for the International Sale of Goods (CISG), a discussion of how these countries have applied the CISG’s fundamental breach rule is undertaken.