The Study On Pre-contract

In the market-oriented economy nowadays, many disputes aboutagreements attribute and validity exist in both the theoretical andpractical areas in the cases where parties conclude agreement based onthe principle of unconstraint. It is obviously manifested in theper-contract which stipulates that the relevant parties should negotiatefor signing a real contract. With the market economy growing, theper-contract is widely used as a special acceptability which is made inthe process of consultation between parties in practice, such as thebusiness, debit and credit consumption and etc. However, there is noexplicit stipulation about pre-contract in China. The existing domesticscholars do not given enough attention to pre-contract and its relatedissues. Therefore, it is significant to study pre-contract to analyze andsolve the theoretical and practical areas problems of pre-contract. Theauthor tries to study pre-contact and analyze the theory of law and explorethe standard norms effectively. And therefore the parties’ interest isbetter protected in the contract, so that it can procure the legal orderof transactions well, normally and safely and can promote trade and thedevelopment of the economy society.Apart from the introduction, the whole thesis falls into four chapters.Chapter Ⅰ is a general introduction to pre-contact from the staticpoint of view to study the pre-contract. This chapter begins with theconcept of pre-contract, and through the definition of this concept, theauthor gives his opinion on the notion of pre-contract. Based on the aboveanalysis, the author goes on to classify the contract into pre-contractand contract. In the second section of this chapter the author summarizesthe legal nature and characters about the conception, and builds a firmfoundation for the framework of this thesis and at the same time, givinga good explanation for why pre-contract has gained such wide-use in ourpractice. Then the author summarizes the importance of the pre-contractin deals, and introduces some foreign legislation on the issue. In thethird section, the author elaborates the French and American scholar’sstandard about pre-contract,and then puts forward his own point of viewto sorts it. In the fourth section, the author expatiates on the threetheoretical basis of pre-contract to lay a solid legal theory foundation.In the fifth section, the author compares the pre-contract with therelated concepts and finds the same points and different points.ChapterⅡstudies pre-contract from a dynamic perspective. It studiesconstruction conditions of the pre-contract and the transfer ofpre-contract. The construction conditions of the pre-contract and thetransfer of pre-contract is greatly important and the law has not beenstipulated explicitly. So in this chapter the author analyzes theconstruction conditions of the pre-contract in the first section and thetransfer of pre-contract in the second section.Chapter Ⅲ studies pre-contact from the view of legal effect. Legaleffect about pre-contract is confused, and related to the rights andobligations. In this chapter the author divides legal effect into twoparts to study. The author analyzes the pre-contract generated obligations in the first section and step by step analyzes liabilitiesof breaching pre-contract in the second section. The author thinks thatthe actual performance is not suitable for pre-contract, but the liabilityfor damages, deposit and the liability for money to breach of contractcan be applied.Chapter Ⅳ is to study legislation on pre-contract. Because Chinahas’t have any law on pre-contract yet, and problems occurred frequentlyin life, it is in desperate need of national legislation to perfect. Inthe first section the author elaborates legislative significance onpre-contract in China. In the second section the author puts forward tothe legislative suggestions on pre-contract in China based on thecomparison with legislation on abroad.In the conclusion part, the author summarizes the whole thesis, givingthe view that the pre-contract should perfect in theory and clearlyexplicated in legislation, which is also the objective of this thesis.