Pre-contract Legal Issues

Precontract is a contract which stipulates that the relevant parties should negotiate for signing a real contract.It is a special acceptability which is made in the process of consulation between parties.It materializes people plan the transaction beforehand.Imitially precontract is regulated in contracts such as business,debit and credit and consumption.Then it can be applicable in signing all kinds of contracts in some countries.Precontract shows the future contract which will be signed next time.In China,precontracts widely used,more disputes and cases are appearing while scholars in China recognize the concept of precontract.But because of the absence of rules in this field,people don't have a clear conception about the nature,the legal efficacy and the remedies for breaking of precontract.The failure in our judicial practice has been hindering us from running smoothly in this area.Meanwhile,our scholars don't pay enough attention to precontract.Apart from the Forward,the whole thesis falls into six chapters:The ChapterⅠis about the natures and functions of precontract.In the first section,the author discusses the concept and natures of precontract,and protrades that precontract is a contract which stipulates the relevant parties should negotiate for signing a real contract.In the second section,the author analyses the status of precontract in the rules of contract.He considers that precontract is under the contract scope but higher than the specific contract.Also,the author discusses the legal characters of precontract.In the third section the author thinks that precontract has three functions:postponing the appearance of the legal dfficacy of the real contract,fastening the transaction chance,and regulating the behaviors before signing the real contract.The ChapterⅡdiscusses the theoretical basis for the legal efficacy of precontract,and adopts comparative and investigative method to disscuss the historical development of precontract in other countries.The author put forwards the elements and definition of precontract in the ChapterⅢ.The first section analyses the elements of precontract.It also emphasis that precontract should be certain and in written form.The second section summarizes the relations and differences between the real contract and precontract.In the third setion,the author compares precontract with other contract concepts.The ChapterⅣis about the legal efficacy of precontract.The first section points out the general legal efficacy of precontract,which have two sorts—must negotiate and must sign.The second section points out obligations of the parties.In the third section the author thinks that preliminary agreement with open terms has the legal efficacy—must sign,and preliminary agreement to negotiate has the legal efficacy—must negotiate.The ChapterⅤis about two kinds of precontract in practice.The first section discusses the precontract with the terms of earnest.The author points out the natures of earnest during signing or performance.He also thinks that the clause of earnest in precontract is sub-contract of precontract.The second section is about the subscription for commerical buildings.It is frequently a precontract,but sometimes it may be a real contract.The author also discusses the efficacy of the subscription for commerical buildings.The ChapterⅥdiscusses the methods of remedies for breaking the precontract.The first section is about violation to precontract and the principals of responsibility of violation.In the second section it is concluded that the aftereffect acting against precontract is the responbility against contract by being compared with the responsibility for the fault in negotiating.The third section discusses the legal responbility in case of breach of the precontract.Although the remedies breach of precontract should not be enforcing one to sign a real contract,it could be relieved by the damage repay,earnest and money for breach of faith.In the conclusion,the author comes back to the original point of the thesis and suggests that wo should establish the systemtic structure of precontract.