Study On The Evolution Of The Precontract Legal System And The Construction Of Existing Theories

Precontract originated from the development of practice contract. Inorder to ease the nature of practice contract, the combination ofprecontract and contract form came into existence. This form triggereda lot of controversial. Some scholars considered that practice contractcould not have a precontract, and French scholars believe that contractwith condition precedent is a typical precontract. These opinions madethis system more mysterious. And after that, precontract system in somecivil law countries develops into a special section.In the first chapter, the author briefly introduce the definition ofprecontract, mainly introduce the legislative condition from Jus Romanumto modern civil law. There are about three legislative modes, namely,precontract system combined with specific contract, precontract systemwith specific aspect regulated by law, precontract system with specifiedregulation.Chapter two focuses on the historical development of precontractsystem in civil law system. Through the analysis, the article sums upinternal causes and external causes. Internal causes tell us how changeof real right model and the effectiveness of precontract influence thedevelopment of precontract system. External causes are how the appearance of contractus consensus and modern trading pattern affect the developmentof precontract system.Chapter three mainly discusses the theory building of precontractsystem in China. First section discusses the classifications of theprecontract in America, France, Taiwan and Mainland of China. It pointsout that to divide precontract system into two parts has a strong logic.Second section analyses various views of the precontracts'effectivenessThe article then discusses three views of the validity of precontract,and puts forward the author's opinion: we can't judge the effectivenessof precontract just according to the precontract's articles, oraccording to the existence of main article of contract in future, but onthe basis of the parties'true intents, reasons to create the contract,contract's necessary articles, etc. The author puts forward threestandards of precontract's effect judgement. And also suggests theapplication methods of the above mentioned standards. These threestandards should be considered together, and there are no priorities ofapplication. Third section mainly discusses the establishment andvalidity of precontract. Firstly, it analyses the application scope ofprecontract, pointing out that precontract could be used in all debtcontracts. The precontracts of practice contracts have mandatorycontracting effect, while precontracts of promise contracts have not.Secondly, this article discusses form of precontracts, questioning thatwhether it needs a form when establishing a precontract. We should learnthe meaning of contracts'form, and view this differently under differentconditions. Then the author analyzes the elements of establishment andvalidity of precontract, suggesting that the establishment of precontractnot only fits the general rule of establishing a contract, but needs theparties'accurate declaration of intent to create a contract in thefuture. And so do the elements of validity of precontract.After the discussion of precontract system above, in conclusion part, the author clarify the importance to write precontract system into ourcurrent law. The purpose of this thesis, the author tries to make asystematic analysis of precontract system, hoping to benefit thelegislation of precontract. However, I have little talent and learning,could not have a full argument of many points, only to start a discussionon this system, hoping criticized correction.