Research On The Pre-Contract Law Problems For Advance Sales Of Commercial Housing

The pre-contract is one of the preparations for the conclusion of its contract. It is widely used in practical business, especially in the course of the commercial-housing purchase. Real estate developers are intent on concluding such a pre-contract with the purchasers of commercial housing in order that they can raise funds, reduce the risk of investment and promote the sale of commercial housing, which, in fact, activates the real estate market.The Supreme Court of PRC (the People's Republic of China) has made principled regulations on the cognizance and settlement of the pre-contract for advance sales of commercial housing in Article 4 and Article 5 of "Judicial Interpretation on the Settlements of the disputes about Commercial-housing Purchasing Contract". However, in our country, for quite a long time, the pre-contract system, especially the one for advance sales of commercial housing, has not been put in an important place as it should be.Its theoretical study is not profound and clear enough, and it is not reflected effectively in legislation, this leads to many controversies over the settlements of the pre-contract disputes on advance sales of commercial housing. The parties concerned have a vague understanding of the pre-contract; the judiciary feel greatly confused about the nature and effect of this pre-contract, about how to judge the responsibilities for breach and how to balance the benefits for the parties concerned. Therefore, it is necessary to study the pre-contract system for advance sales of commercial housing from the perspective of theory and practice since it has not been applied skillfully to practical business.In this thesis, it firstly analyzes the definition of "reservation" and the legislative examples, and based on this, it explains the definition of the pre-contract for advance sales of commercial housing, emphasizes its legal features and studies its legal effect; it also explores the rights and obligations for the parties concerned before the expiry date of this pre-contract, such as the implementation of obligations for transaction, the observation of the principle of credibility to carry out negotiation and so on.Secondly, this thesis points out the present condition of the judicial practice in the pre-contract for advance commercial-housing sales and its difficulties in the judicial practice, and meanwhile makes a further analysis of the responsibilities for breach which is a main and difficult task in the judicial practice of the pre-contract for advance commercial-housing sales. Finally, the thesis tries to come up with some ideas on building the pre-contract system for advance sales of commercial housing in terms of the legislative mode, the protection of property rights and the principle of changed circumstances according to the doctrine of frustration of contract.