A Study On Precontract

Contract is a kind of bargain established by the parties on their wills. A contract links the different interests through the building of credit, from which each party get what they want. In recent years, with the advancing of marketing, precontracts are being used in a wider and wider range of practice. Precontracts can make the contract to march forward in the anticipated orbit, yet due to the absence of the rules in this field, more and more disputes and cases are appearing. The failure in our judicial practice has been hindering us from running smoothly in this area. Meanwhile, our scholars fail to pay adequate attention to precontract. So it is obvious that study on the problem of precontract is of great value not only in the theatrical sense but also at the practical level. The author chooses this topic as her thesis, hoping to probe for an effective approach for the settlement of this issue, help the parties to conclude and perform the contract smoothly, thus contribute to the establishment of the legal order. In this thesis, the author uses a comprehensive technique of a historical method, a comparative method in order to better analyze this topic. There are all together four chapters in text of this paper and the following are the details of the text: Chapter one is about the introduction of precontract. This chapter begins with the concept of precontract, and through the definition of this concept, the author gives her opinion on the notion of precontract. Based on the above analysis, the author goes on to classify the contract into precontract and contract. Basing the legal characters on the conception, the author builds a firm foundation for the framework of this thesis and at the same time, gives a good explanation for why precontract has gained such wide-use in our practice. In the second section of this chapter, the author summarizes the importance of the precontract in deals, and introduces some foreign legislation on this issue. In the third section, the author expatiates on the three theoretical basis of precontract, sorts it at the same time, and points out the improper classification of precontract in our country. Chapter two analyzes the problem in a mobile view. In this chapter, the author compares the concept of precontract with the similar concepts in the civil law system and the common law system, which may help for an exact grasp and use of this conception. In chapter three, the author puts great emphasis on the constituents of an effective precontrat, the determinants of precontract, and the range of it as well. The study on the factors of the constitution of an effective precontract is the basis and the core of the establishment of a precontract. In section one, the author discusses the constituents of an effective precontract, stating that to form an effective precontract, one must not only obey the general rules which apply to the contract according to contract law, but also observe the rules that one must express an obvious intent to establish a certain contract in the near future, what's more, the contention of the precontract should be reasonably ascertained, and the form of a precontract need not to be in writing in principle. Section two is on the determinants of a precontract. The author shows her idea that not all the contracts are suitable for making preliminary agreement, so the author forwards her view on the applicable area of precontract in the last section. Chapter four is about the legal effect and the status of earnest money in course of a precontract, and the effect of the precontract is the emphasis of this part. In section one, the author shows that the obligation of the parties is to try their best to negotiate and conclude the contract on the basis of good faith. While in section two, the author goes on to probe into the legal responsibilities in case of breach of the precontract. In this part, the author put great energy on probing the problem of whether the remedies of a precontract is enforceable, and goes on to discuss the essence of the earnest money frequently used in precontracts, and analyzes the different ways of settlementunder different conditions accordingly. On the basis of the above analysis, the author comes back to the original point of this thesis in the part of conclusion aiming at solve issues and disputes, in which she poses her suggestions on the establishment of the systematic structure of precontract at both the legislative level and the theoretical level.