Study On Basic Issues Of Pre-contract

Pre-contract is a contract binding people to make a contract. This dissertation is to discuss the concept ,the formation ,the classification ,the legal effect and academic basis of pre-contract. According to the need of discussion , the dissertation is divided into six chapters with their specific frame and opinions as follows: The first chapter introduces the dissertation's study domain, study motivation and intention and study methods. The second chapter introduces the different academic opinions on pre-contract's formation and legal effect. Through the discussion on these academic opinions, the dissertation discloses domestic scholars'different comprehension on pre-contract's concept and their methodological problems and points out that the pre-contract's concept should be reviewed from process of transaction. The third chapter discusses the pre-contract's meaning and point out the term"make"in the pre-contract's concept should be interpreted as"negotiate in good faith for the purpose of making a contract"so as to accord with the social reality and pre-contractual obligations. The fourth chapter discusses the formation and classification of pre-contract. After clarifying the concept of pre-contract, the dissertation discusses the applicable domain of pre-contract and points out that pre-contract only exists relatively to contract made by promises and status contract, property contract and practical contract do not have pre-contract. Then the dissertation discusses the essential elements of pre-contract's formation and points out that the pre-contract's formation requires affirmation of contract's object and consideration besides the other requirements. According to the content of the relative contract that the pre-contract contains, the dissertation divides pre-contract into the categories: pre-contract containing the essential contents of the contract and pre-contract not containing the essential contents of the contract. And the essential contents of the contract should satisfy the minimum requirements of an offer. The fifth chapter discuss the pre-contract's legal effects and points out the legal effects of pre-contract bases on the solution of the conflict of the principle of contract freedom and the principle of good faith. The principle of good faith restricts the contract freedom from two arrangements: the first arrangement of restriction contains the freedom to choose the opposite party, the freedom to decide the contract's classification and the freedom to negotiate the contract, corresponding with pre-contract containing the essential contents of the contract; the second arrangement of restriction adds restriction on the freedom of deciding to conclude a contract to the first arrangement, corresponding with pre-contract not containing the essential contents of the contract. Because contract freedom is restricted differently in the two categories of pre-contract ,the legal effects of the two categories of pre-contract differentiate. As far as the pre-contract not containing the essential contents of the contract is concerned, the essential contents of the contract to be made have to be decided through negotiation of the parties and court is not able to complement them, therefore, the right for mandatory conclusion of the contract should not be vested in the obligee so as to protect the contract freedom. The obligee has the right for compensation based on confidence. On the contrary, the non-essential contents of the contract can be complemented by court under the policy of encouraging transaction, because the pre-contract contains the essential contents of the contract. If the obligor violates the obligation of negotiating in good faith, the obligee may be granted the right for mandatory conclusion of the contract so as to protect the contractual interests. At the same time, if a pre-contract containing the essential contents of the contract prescribes that the contract is not formed when the parties did not agree on certain terms of the contract, the right for mandatory conclusion of the contract should not be vested in the obligee so as to protect the contract freedom. The last chapter concludes the characters of pre-contract and points out the essential contents of a contract only contains the object and quantity hereof of the contract.