Default Remedy For A Precontract

With the development of business and the needs of economic life,the application of precontracts in daily transactions is becoming more and more extensive.People hope to summarize the results of long-term negotiations and negotiations through precontracts,or fail to sign the dues due to facts or legal reasons.The trading opportunity is fixed by the form of an appointment,thereby forming a binding force between the two parties.However,there is no relevant provision in the current law of China regarding the appointment of a contract.Article 2 of the Supreme People's Court's Interpretation of the Supreme People's Court's Interpretation on the Application of Legal Issues in the Trial of Cases of Sale and Purchase Contract Disputes(hereinafter referred to as the “Judicial Interpretation of Sale Contracts”)stipulates that a party violates the provisions of the precontract and fails to perform the contract.The obligations of the other party may require the defaulting party to assume the liability for breach of contract or to cancel the precontract and claim damages,but the specific liability for breach of contract and the scope of the damages shall be determined.The Supreme People's Court still has no Respond.In theory,the controversy over the issue of whether the contract can be enforced and the scope of compensation for breach of contract damage is still unresolved.There is no relevant provision on the precontract in the law.The provisions on the appointment in the judicial interpretation are vague.In theory,there are differences in the issue of breachof contract for the precontract.Therefore,in the judicial practice,the judge has different situations in the processing of similar cases.The first chapter of this paper mainly analyzes the reasons for the different judgments of the contractual breach of contract in judicial practice.The first reason is that the precontract is not stipulated in the law of our country,and the judicial interpretation of the reservation contract is ambiguous and not prolonged.Secondly,the way of theoretically remedy the contract for breach of contract is mainly based on the possibility of continuation and the determination of the scope of damages for breach of contract,which ultimately led to the judges adopting different views on the case,"different judgments" phenomenon.To solve the problem of default contractual remedy for reservations,the most fundamental problem is to clarify the concept of an precontract.The second chapter of the article is mainly about the definition of the precontract.The precontract is a contract signed in order to enter into the contract in the future.However,in the judgment of the case judge,there is still a problem that the criteria for defining the precontract are not clear enough.In conjunction with the "Zhong Chongqing Case","Zhang Li Case" and "Chengdu Swift Case" published in the Supreme People's Court Gazette,the judgment of the precontract and the requirements for the establishment of the contract,judging the precontract is first to judge whether the contract content is certain.Then,it is necessary to judge the true intention of the parties to the contract,that is,whether it has the meaning of signing the contract in the future.At the same time,it is also necessary to pay attention to the distinction between systems similar to the precontract,mainly the distinction between the letter of intent,the contract,the framework agreement,the conditional or the term contract,and the contracting fault.The main difference between a letter of intent and an appointment is that the letter of intent can be signed at any stage before the final contract is concluded.It may be binding on the parties and may not be binding.The appointment is binding on both parties,so the appointment is a letter of intent.This is the purpose of the appointment.If the parties can directly deliver the subject matter or the price based on the contract after the contract is signed,it is the contract.If the contract is signed,the two partieswill sign another contract.The difference between an appointment and a framework agreement is that the framework agreement is an agreement that outlines the main contents of a series of specific contracts.According to the content of the framework agreement,if the agreement stipulates that a contract is to be signed in the future,the framework agreement is The contract is reserved.If the framework agreement only provides the clause of the contract for the future contract,it is not an precontract,so the precontract is a kind of framework agreement.The difference between an appointment and a conditional and time-bound legal act is that the precontract is valid after it is signed,but the conditional and time-limited legal acts are only established after the signing,and are not effective until the time limit is reached or the conditions are met.Effective.The main difference between the appointment and the liability for negligence in contracting is that the liability for negligence in contracting is a statutory duty,and the contract for appointment is signed by the two parties based on the autonomy of the right,so it is an agreed liability.Therefore,when judging responsibility,the former is fault liability,while the latter is no fault.responsibility.The third chapter is about the effectiveness of the precontract.There are three viewpoints in the validity of the precontract.The first viewpoint is “necessary consultation”.It is considered that the binding force on the two parties after the precontract is signed is to bind the two parties to negotiate in good faith.The second viewpoint is “should be contracted” and thinks The binding force of the precontract is reflected in the requirement that both parties finally sign the contract;the third viewpoint is “content decision theory”,and it is considered that if the contractual agreement is relatively complete,the parties should be required to finally sign the contract.If the contract content is not complete,only the requirements are required.The two sides can negotiate in good faith.In combination with the above-mentioned requirements for the definition of the precontract,the content is required to be certain,and the parties are required to have two criteria for signing the contract in the future.It is more reasonable to adopt the "should be contracted" for the validity of the precontract.The fourth chapter is the default remedy for the precontract,which is also the main problem that this article wants to solve.There are three main types of defaultremedies for precontracts: continued performance,damages,and deposits and liquidated damages.In combination with the definition of the precontract in the second chapter above,it is considered that the continuation of this remedy can be applied to the occurrence of the default contract,and the result of the conclusion of the agreement between the two parties is achieved by the court decision instead of the party's meaning.The problem of determining the scope of damages is not due to the failure to sign the contract at the time of the breach of the contract,so the portion of the vested interest can not be compensated,and the lost interest in the reliance interest can be compensated if the party can prove it.