The Study On The Remedies For Breach Of Pre-contract

The concept of precontract was first put forward by the civil law system and became mature theoretical system in Germany.The aim of the precontract is to enter into a contract in the future and guarantee of the contract is its main value.In our country,the legal system of precontract was first formalised in the relevant regulations about precontract in Article 2 of <Interpretation of the Supreme People's Court on Issues Concerning the Application of Law for the Trial of Cases of Disputes over Sales Contracts>(hereinafter referred to as the <Judicial interpretation of Sales Contracts>).Various researches show that opinions of the identification and the remedies of breach of precontact diverge among scholars.I intend to combine the judicial practices of China to analyze the definition of the reasonable range of the remedies for breach of precontract from the angle of identification of the content of precontract.In the first part of the the article,the relevant concepts like the nature,characteristics,content and the relationship between precontract and contract are defined,meanwhile I also make a distiction between the precontract and contract.The second part of the article presents the identification of the effects of the precontract by consolidation of theories,the comparative studies of foreign laws and the analysis of the judicial practices.Furthermore,I demonstrate the application of the compulsory contracting in the precontract based on the theories mentioned above.The third part presents the remedies for the breach of the precontract from the side of the identification,consequences and the way of undertaking the liability of the breach of contract.Given the lack of relevant regulations,the scholars had put forward several opinions about the identification of the certainty of the content of the precontract,which affects the identification of the effects of the precontract and the liability for breach of precontract.In the process of writing this article,after collecting a large number of judicial precedents,three kinds of trail methods relevant to the precontract are summarized.The key points of this article are the confirmation of the content and effects of the precontract because precontracts cannot directly apply to the liability for breach of contract for the particularity of the subject of the precontract.I conclude from various relevant confirmations about the effects of the precontract from the theoretic side: we need combine the specific cases and the content of the precontract to confirm the effect of the precontract,rather than theory only.The confirmation of the liability for breach of precontract in this article is based on the confirmation of the contents of the precontract.The liabilities for breach of different kinds of pre-contracts are totally different,so it can never be decided by one of the theories.The scope of compensation for damages vary according to the classification of appointment in the content of the different,only for simple reservation reliance interest compensation,but for the typical appointment pending the appointment included subjective need to compensate the loss of reliance interests also consider the specific case and appropriate to improve the standard of compensation,but to fulfill the interests of the upper limit.The exercise of the right to terminate the contract and the compensation for breach of contract is not contradictory,can be applied to the contract.According to the integrity of the precontracts,the scope of the compensation for damages is different,so for the simple precontract,we only need to compensate for its reliance interest,while for those typical precontract which contains subjective unsettled matters,we need not only to compensate for its reliance interest but also take the specific condition of the case into consideration and increase properly the compensation standards which limits to the erfullungsinteresse.