On The Liability For Breach Of Contract In Advance Contract

With the rapid development of market economy,the transactions between different social subjects become more and more frequent,and the content and form of contracting become more and more complex and extensive.The traditional "offer acceptance" integrated contracting mode is far from meeting the needs of market transactions.In order to fix the trading opportunities and promote the smooth signing of subsequent contracts between both parties,appointment is widely used in the fields of sales contracts.Appointment contract seems to have become the "touchstone" in market transactions.However,there are few provisions on the liability for breach of contract in China’s legal system,and there are contradictions and conflicts between different legal levels.At the same time,in practice,the cases of liability for breach of precontract contract occur frequently.The basis of judges’ liability for continuous performance,damages and deposit after breach of precontract contract is different.It is common that the same case is judged differently,which leads to the reduction of the credibility of the law and hinders the normal development of commercial transactions.Therefore,it is particularly important to study the theory and practice of the liability for breach of contract in advance.This paper consists of four parts:The first part is preface.First of all,this paper clarified the background and significance of this research,then briefly describes the relevant research results of scholars on this topic,the paper expounds three research methods(case analysis,literature analysis,comparative analysis)and the main research situation.Finally,it introduces the innovation and shortcomings of this paper.The second part,the case introduction.Based on three cases of liability for breach of contract in advance,this paper summarizes the basic facts of the case and the reasons for the court’s judgment.Finally,based on three cases,four controversial focus are extracted,namely,whether the nature of the contract involved belongs to the appointment contract,the nature,amount and burden of proof of the deposit of the reservation contract,whether the appointment contract can be applied to continue to perform the breach of contract liability,and the nature and standard of damages after the contract is breached.The third part,legal analysis.Combined with the above three cases,this part mainly focuses on the legal analysis of four controversial focuses.First of all,the differences between the appointment contract and the subscription book,this contract,combined with the characteristics of the agreement,certainty and duration of the appointment contract,are discussed around the fundamental purpose of the appointment contract.Secondly,the nature,amount and burden of proof of the deposit in advance contract are discussed from the legal and social aspects.Thirdly,this paper compares the advantages and disadvantages of negation theory,affirmation theory and dichotomy theory,and analyzes the logical basis of continuing performance of precontract.Finally,this paper analyzes the nature and scope of damage compensation in advance contract by quoting van sworth’s "advance with negotiation" and "advance with pending clause".The fourth part is the conclusion and Enlightenment of the case study.According to the relevant legal issues discussed in the previous article,the author draws the conclusion of the relevant case study,that is,the nature of the appointment contract should be discussed from the fundamental purpose of the contract;the nature of the deposit of the appointment contract is "contract and breach of contract",and the amount is to determine whether the limit of 20% is applicable according to the completeness of the content of the appointment contract,and the burden of proof should be clear of the standard of "good faith";the appointment contract can If it is suitable for continuous performance,the application should be determined according to the type of precontract;the nature and scope of damages of precontract should be analyzed independently according to van sworth’s view on precontract.This paper proposes specific solutions to the existing problems.For example,to improve the provisions of the relevant laws on the liability for breach of contract,to determine the liability for breach of contract by type,to improve and unify the interpretation and reasoning of guiding cases,and to try out the model of the contract format in the region.