Study On The Effect Of Preliminary Contract

Although the formation of the preliminary contract institution has great connection with the consensual contract and the deposit system of Roman Law,the concept of preliminary contract was firstly put forward by the School of Glossators in the Middle Ages.Subsequently,civil law countries and areas such as France,Germany and Taiwan province of China have transplanted it,whose research result has provided reference for researches in China.There is a simple stipulation on preliminary contract in judicial interpretation of the Supreme Court,but the specific rules are still in blank.So there is no consensus among academics about the effect of precontract.In judicial practice,divergence in judgment of effect of preliminary contract often appears,such as inconsistent judgments in similar cases.The unclear effect of the preliminary contract is not conducive to meeting the diversified needs of the parties in the market.It is not conducive to giving more consideration to the parties involved in the transaction,nor does it help to unify the standards of adjudication,nor define the behavior in the process of the contract.Therefore,it is of great practical significance to discuss the effect of preliminary contract.This article mainly consists of three parts:The first part examines the practical status quo of the legal effect of the preliminary contract in our country.By randomly selecting preliminary contract cases from the Peking University Center for Legal Information and the analysis of them,it is found that practice has not unified the establishment of appointment and the refereeing path of the validity.The understandings of the legal effect of preliminary contract on the parties are different.The liabilities to be assumed in breach of preliminary contract are also controversial.The second part re-examine the effect of preliminary contract.Preliminary contract,indeed,is the expression of true intent of parties,on basis of which,the author draws upon the academic achievements on the effect of preliminary contract,proposes that the parties should consider the conclusion of the contract as a process of deepening development,and should define the effect of precontract based on comprehensive assessment of all factors,in accordance with specific facts of different stages in signing up the precontract.The effect of preliminary contract is different depending on the different negotiation stages the parties areon.As the negotiation goes on gradually,the reservations the parties may conclude are generally presented as a series of in-force.The appointment can be divided into such two types as consultation type and contracting type in the progressive sequence of effectiveness,and the specific legal effects of the appointment of the two types of effectiveness type are determined.The former only required the parties concerned to act in good faith and the latter also made the parties bound by the treaty.The third part discusses the legal liability for breach of precontract.The effect of precontract not only lies in the binding effects on the parties,but also extends to the legal effect on breach of precontract.Although the act of violating precontract may simultaneously be the constitutional element of default liability in contract,the legal liability belongs to the responsibility of breach of contract in nature.Appointment for this type of contract is not limited to a certain type of contract.There is no need to discuss strict liability as the principle of liability for breach of contract.The default forms of liability for breach of contract generally include mandatory actual performance,compensation for loss,damages and deposit penalties.Among them,the whether to apply compulsory actual performance depends on the type of reservation validity,while the compensation for damages includes the appointment of trust interests and the appointment of expected benefits.The more mature the transaction is,the higher the degrees of trust are,and the closer to the conclusion of contract,then the damages will be more approximate to the loss of expected interest.The damages are generally compensatory damages unless otherwise agreed upon by the parties.The booking deposit is special because the booking in a precontract is designed to reach the contract.