Liability For Breach Of Preliminary Agreement

The Article 2 of The Interpretation of the Supreme People's Court on Issues Concerning the Application of Law for Sales Contracts specifically provides for the Liability for Breach of Preliminary Agreement.While this article is not clear:although the preceding paragraph make clear the definition of preliminary agreement,the difference with letter of intent and other documents with similar concepts is not clear;and on the latter paragraph,the remedy of specific way and scope for breach of preliminary agreement is still vague.In this paper,the main object is preliminary agreement of commercial housing.Author found in most cases the developers were not implemented the duties of preliminary agreement,which signed the contract,causing the buyer to suffer damages.The indefinite of liability for breach of preliminary agreement will directly cause the non-breaching party to fail to protect its legitimate rights and interests properly.Therefore,this paper mainly uses the empirical research and the comparative analysis method to carry on the comprehensive and detailed inquiry to the application of the liability for breach of preliminary agreement.First of all,we should confirm how to locate preliminary agreement in the contract law system,because the problem is established under preliminary agreementwas set up,so the boundary between the preliminary agreement and the ultimate contract should be clearly defined.On the basis of the foregoing,the first issue is whether the appointment of breach of contract can be applied to the remedy of enforced performance.Since the appointment is a kind of preparatory agreement for the ultimate agreement,it is based on the principle of Autonomy of Private Law.Therefore,people focus on whether it is possible to force the parties to implement this contract would violate the principle of Freedom of Contract.The second issue is the extent of damages.The special nature of the time of preliminary agreement determines that there is a dispute whether the extent of damages for such a breach would be a reliance damages or based on the injured party's expectation under the ultimate contract in the judicial practice and theoretically.This paper,combining with the judicial cases and theory to judge the range of damage compensation.Apart from the preamble and conclusion,this paper has three chapters:The chapter one focus on raising questions about the preliminary agreement.First it should located preliminary agreement in the contract law system and confirmed the permissibility of the preliminary agreement.Preliminary agreement is independent of the existence of the ultimate contract.Although the Article 2 of The Interpretation of the Supreme People's Court on Issues Concerning the Application of Law for Sales Contracts recognizes the preliminary agreement and stipulates that breach of such agreement should bear the liability for breach of contract,but the mode of remedy for breach of contract is unclear,including enforceability of the preliminary agreement and the scope of damages.Judicial practice is the best projection of the law.Based on the typical cases of preliminary agreement,there is non-identical referee on the above two issues,and this prove that it is necessary to further explore the application of the liability for breach of preliminary agreement.In addition,put forward the special nature of the preliminary agreement,its special performance in: binding force,duration and certainty.To a certain extent,the special nature of the preliminary agreement help to distinguish with ultimate contract,but in reality is more complex,it should be combined with the actual situation to make a concrete analysis,can not be arbitrarily determined.The second chapter relates to the feasibility analysis of enforced performance.Enforced performance is one of the ways of assuming the liability of breach of contract in general contract.However,preliminary agreement is a preparatory agreement before the ultimate agreement,the particularity of which is that the object of it is the obligation to assign the ultimate agreement between the parties.There was controversial that Whether or not the subject can be enforced in trial practice and theory.In the judgment of the court,the majority of the ruling can not be forced to perform,but there are many reasons,specifically: First,the subject of the contract can not or is not suitable for enforced performance;the second is contrary to the principle of Freedom of Contract;the third is preliminary agreement isn't mandatory contract.Scholars who hold opposing views in the doctrine of reason are nothing more than the above-mentioned three reasons.On the contrary,scholars who support the view that the preliminary agreement should be mandatory binding,and its subject is can be mandatory.The application of enforcement is essentially the issue of the effectiveness of the preliminary agreement.In this issue,"must consult" and "must conclude contract" respectively correspond to the above-mentioned opposition view and support view.In the above-mentioned argument,the third path "content decision theory" appears.its legitimacy is based on: "content decision" based on the degree of trust of the parties to determine the extent of legal protection of the interests of the parties,the final composition of the system is "the full extent of necessary clauses of contract---the degree of trust of the parties---the degree of protection---the application of enforced performance ".When the necessary clauses of preliminary agreement are complete,the parties concerned trust the other party to perform their duties with high degree,so the protection of their legitimate interests should be strong,then the remedies of injured party should be allowed to enforced performance.vice versa.The third chapter is the scope of compensation of damages.This part is still combined with judicial precedent and found that the referee on the scope of the judgments of the damages vary.On the basis of combing the case,this chapter sums up the situation of the damages in parallel with other remedies of breach of contract.Secondly,according to the theoretical analysis,the disputed scope of compensation for breach of contract damages mainly concentrates on the reliance interest of ultimate contract or the performance benefit of ultimate contract.Therefore,this chapter explores the theory of interests and reliance interests,clarifies the differences between the performance benefits of ultimate contract and the reliance interests of ultimate contract,the performance benefits of preliminary agreement and the reliance interests of preliminary agreement,and analyzes combined with the effect of preliminary agreement discussed in the previous chapter.In addition,another criterion for determining the scope of damages is the amount and nature of the money paid by the parties and the subjective degree of malpractice of the parties' breach of contract.The standards are mainly based on the analysis of the actual cases and the current market trends,and then combined with the rules of limit of damage compensation to determine the scope of comprehensive compensation.Finally,elaborate on the specific calculation method of damages.