Research On The Liability For Breach Of The Pre-contract

After the pre-contract was introduced into my country,it is widely used in the fields of leasing,house sales,equity transactions and so on.The promulgation of the Civil Code defines the pre-contract legislatively for the first time,but it fails to solve the specific application of the liability for breach of contract in the pre-contract.Therefore,studying the issue of responsibility for breach of contract in the pre-contract can help enrich the relevant research theories,clarify the rules for the identification of liability for breach of contract and the ways to undertake responsibility,and at the same time,it is different from the liability system for culpa in contrahendo from the perspective of legal effects,thereby highlighting the independent value of the pre-contract.From a practical level,it can provide reference for judicial trials,stabilize the market order and safeguard the interests of the parties.The parties widely use the pre-contract agreement in the trading market for the purpose of promoting the conclusion of this contract,locking in trading opportunities,and ensuring transaction input.Due to the variety of forms of appointment contracts in practice,it is necessary to grasp their elements and characteristics in order to accurately identify them.The pre-contract has the characteristics of predestination,relative certainty of content,and time limit,among which predestination is the key to distinguish the pre-contract from the concluding contract,and distinguish the pre-contract from other negotiation documents.Specifically,the pre-contract and the concluding contract are distinguished based on the expression of the parties’ will,combining the completeness of the terms of the contract and the performance of the contract.The Civil Code provides a clear legal basis for the application of the pre-contract and extends its scope of application to all types of transactions.However,liability for breach of contract is still adopted in principle,which cannot provide effective guidance for judicial practice.The judicial interpretation only stipulates the liability for deposit,and does not involve specific applicable rules for other forms of liability for breach of contract.Combining the legislative and judicial status quo,it is found that there is a conflict in the application of the principle of attribution,the elements of breach of contract are not clear,the application of specific performance of responsibility is controversial,and the scope of compensation for losses is not clear.In view of this,this article combines reality of our country and the reference experience of the judicial practice in Germany and the United States,on the basis of guaranteeing the independent value of the pre-contract,and makes the following recommendations on the liability system of the pre-contract in our country:First,pre-contract agreements in my country are characterized by diversity,and we can learn from the experience of the United States in taking the typed path of identifying responsibility of breach of contract.On the basis of the content of existing pre-contract in my country,according to the degree of certainty of the content and the intention of the parties,pre-contract agreements are divided into complete pre-contract agreement and the pre-contract agreement with clauses to be negotiated.Secondly,when judging the attribution of liability for breach of contract,the principle of strict liability applies to complete pre-contract agreement,and the principle of attribution of fault liability should be applied to the pre-contract agreement with clauses to be negotiated;the doctrine of liability fixation ofFault liability is considered when determining the scope of compensation for losses.Thirdly,based on the protection of the interests of the parties to the transaction,the breach of complete pre-contract agreement should be the failure to conclude a final contract;based on a reasonable interpretation of the parties’ intentions,the breach of the pre-contract agreement with clauses to be negotiated should be an act of negotiation in bad faith.Then,according to the factors of enforceability and execution cost,the pre-contract agreement with clauses to be negotiated is not applicable to specific performance,while complete pre-contract agreement can be applied,but it should refer to the possibility of actual performance of the final contract and the situation of changes in the situation.Finally,due to the consideration of independent value and economic benefits,the pre-contract should not adopt the rule of indemnifying the reliance interest.Therefore,in the compensation interval of reliance interest(including opportunity loss)and performance interest,the loss compensation for complete pre-contract agreement refers to the performance benefit standard,and the loss compensation for the pre-contract agreement with clauses to be negotiated refers to the reliance interest(including opportunity loss)standard.Factors such as input cost,content integrity,malicious breach of contract by the parties and time limit shall be considered when determining the amount.