The Research On Pre-contract

Pre-contract is an agreement that both parties are to reach in the future. Pre-contract is a special kind contract in doctrinal contract classification. It differs from contract. Pre-contract has two distinctive features. One is that pre-contract is a contract in essence. The other is that the target of conclusion of pre-contract is to arrive at the final contract in future. To compose a pre-contract has to comply with both formal law and substantial law. General provisions of civil law in China regulate the substantial law of contract. As pre-contract is a contract in essence, the rule of substantial law of contract can apply to pre-contract. The rule in this field is absent in China. Accordingly, it is very necessary to make the rule in pre-contract.The legal efficacy of pre-contract has two sorts– must negotiate and must sign. By analyzing weakness and benefit of both of them, it is not very wise to use one of them to solve all problem about legal efficacy. The legal efficacy of pre-contract depends on the content of pre-contract. In the legal efficacy period, both parties must exert themselves to negotiate with good faith and fairness. If a pre-contract applies to must sign, one party is in duty bound to reach contract to conclude transaction.One party who breaks pre-contract must be liable for breach of contract. But the specific methods of breach of pre-contract differ from breach of contract. Whether one party can apply to court for enforcement, there are different views in different countries, and scholars in China also have different opinions. After analyzing different points, the conclusion is that it depends on different legal efficacy of pre-contract. In must negotiate, one party should compensate reliance interest. In must sign, one party should compensate for reliance interest, but also should compensate for performance interest in reference. Despite above methods, there exist the other forms as paying deposit and liquidated damage.