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Analysis Of The Pre-contract System

Posted on:2008-10-19Degree:MasterType:Thesis
Country:ChinaCandidate:X L ShiFull Text:PDF
GTID:2166360242957751Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
A pre-contract, is an especially kind of the contract in the Contract Law Classification System. The research of the pre-contract is inexhaustive in the law area in our country, and it is also pale in the academic and the practical circles. At least, the present law in our country makes no provision and recognition for it. Although some other countries and regions prescribe and legislate the pre-contract in the law, it is also not detailed and complete enough. With the rapid economical development, the pre-contract, which is originally not a well-known conception, is now inevitably filtering into the daily economic activities. But in the judicial practice, the pre-contract is maladjusted in the legal rules because people are impercipient to the conception of it.The pre-contract still belongs to the sphere of the autonomy of the will. The pre-contract, which is admitted and brought into the adjusting range of the contract law, can not only protect better the interests of both parties in every stage of a contract, but also be favorable to establish a stable transaction order. The law is duty bound to construct a frame, which centers on the principle of good faith and the rules of the pre-contractual obligation. Moreover, people can be free and fair to negotiate in this frame.There are four chapters in this article. The preface briefly introduces the original meaning and the legislative meaning of the pre-contract; the situation of the production, development and research in domestic and foreign countries.In the first chapter, some basic theories are expounded as the base of the followed discourses. There are four questions which are exposited in this chapter. First of all, all kinds of the definition of the pre-contract in the world are enumerated, and the comprehension of the conception of the writer is illustrated. Then the writer analyzes the legal features and the nature of the pre-contract, furthermore she sums up the legal features in system. The next step, the writer lists the classification of the pre-contract by the scholars in France and the U.S.A., and then puts forward a classification by her own. At last, two kinds of legislative cases of the pre-contract in the world are compared and one of them is worth of using.In the second chapter, the theoretical principle of the pre-contract are analyzed. The first principle is the principle of honest and credit. It is the regal clause in the Civil Law and at the same time it is also the fundamental principle of the Contract Law and applies to every contract. The second principle is the principle of the autonomy of the private rights. It is also the fundamental principle of the Civil Law and applies to the Contract Law, Marriage Law etc. For this reason, it is considered as a theoretical principle of the pre-contract. The last principle is the life history theory of the contract .Under this theory, it is considered that there is a process of the signing of a large contract, and the pre-contract exists in it.In the third chapter, the pre-contract is analyzed and expounded from four main headings. The first head is the foundation standard: suitable standard of the main body; assured content and clear conception; obligation of the behavior of the subject matter; effective meaning expression and the acceptable meaning of the agreement of both parties; on paper. Next, the differences between pre-contract and contract are compared and the discriminating conducts are found from the discussion of the relations and distinguishment between them. In the third step, all kinds of pre-contracts in Practice are listed, for example: the purchase agreement of the crops and the poultry; the purchase letter of the presale of the commercial residential building; the pre-contract in insurance; engagement; the reservation on the phone or internet; the agreement of employment in the graduate. In the last part of this chapter, the differences between the pre-contract and the referendum contract, the incomplete contract and the stop condition tying contract are discriminated.In the last chapter, the legal obligation of the infringement of the pre- contract is discussed. From one hand, there are duties of both parties in a pre-contract. And on the other hand, there are differences between the legal obligation of the pre-contract and the liability of fault in a contract. At last, a conclusion is got that there are two forms of the responsibilities of breach of contract: compulsory performance and damage compensation.In the part of the conclusion, the importance of the legislation for the pre-contract is explained clearly. The aim of writing this article is trying to discuss the pre-contract in details. Because the author has little talent and learning, and may opinions haven't been argued adequately, so the article only wants to throw out a brick to attract a jade, excepting the emergence of valuable opinions about the pre-contract and the correction on this article.
Keywords/Search Tags:pre-contract, the life history theory of the contract, the classification of the pre-contract, the responsibilities of breach of the pre-contract
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