The Research Of Precontractual Liability Remedy

More frequent use of preliminary agreements in modern business practices, has been resulting more and more relevant disputes, which in turn presses the courts for response. The most urgent one is the problem of suitable remedies for the default breach of preliminary agreements. In judicial practices, the courts tend to restrict the compensation within the reliance interest of a real effective contract being made, and have a negative attitude on supporting the claim of specific performance, which has brought about problems of insufficient remedies. To handle such problems, judicial practices has developed two methods of offering substantial remedies for the expectation interests of performing the real contract. One is an expansion of supporting the remedies of lost opportunity of making contract with a third party. The other is affirming the so-called preliminary agreement as a real one. Both ways hurt the stability and unity of legal system. However, allowing the protection of “the expectation of the expectation interests of performing the real contract” will make adequate remedies possible. By backing to the analysis of the Legitimizing foundations of pre-contract liability, we can find the basis for why protect “the expectation of the expectation interests of performing the real contract” and analyze the relevant factors about the strength of such expectation within the help of “Contract's Maturity Theory”. Based on such research, the paper try to grasp some criterions for guiding the consideration of which situation to support the total compensation for expectation interests of performing the real contract,as well as specific performance for a preliminary agreement. In the case that the performance of the real contract is still possible or irreplaceable, the specific performance of the preliminary agreement has its unique values. Finally, the paper gives an analytical framework of the differentiate application of specific performance of a preliminary agreement.