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Studies in the Contract Laws of Asia IRemedies for Breach of Contract$
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Mindy Chen-Wishart, Alexander Loke, and Burton Ong

Print publication date: 2016

Print ISBN-13: 9780198757221

Published to Oxford Scholarship Online: April 2016

DOI: 10.1093/acprof:oso/9780198757221.001.0001

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Availability of Specific Remedies in Chinese Contract Law

Availability of Specific Remedies in Chinese Contract Law

(p.21) Availability of Specific Remedies in Chinese Contract Law
Studies in the Contract Laws of Asia I


Oxford University Press

Chinese law adopts a middle-ground approach between the common law approach (damages is the dominant remedy) and the civil law approach (specific performance is the dominant remedy): both remedies are placed on equal footing, with no hierarchical preference for either one. Creditors are free to choose the remedies that they prefer. However, several restrictions are put in place to limit the application of specific performance. The middle-ground approach appears to work well where parties are given a free hand in selecting the appropriate remedy because they may have more information available than the court to determine the better compensatory mechanism. However, Chinese courts still retain their discretion in deciding whether to award specific performance as a remedy, even if the creditor requests it. It seems that different legal systems have reached similar results, on the practical level, with regard to the availability of specific performance.

Keywords:   Chinese law, Chinese Contract Act, specific performance, repair and replacement, performance interest, injunctions, restrictions, routine remedy, practical availability

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