A Study Of Precontracts

Precontracts are the contracts which have agreed that a sales contract is to be concluded within a certain period of time. The contradiction between the considerable input in the consultation stage and the lack of protection in the pre-contract stage provides conditions for the emergence of precontracts. The Interpretation of the Supreme People’s Court on Issues Concerning the Application of Law for the Trial of Cases of Disputes over Sales Contracts, which was concerned by both the academic circles and normal people, came into force on July1st2012, and it regulated precontracts in its Article II which showed law makers’ attention to precontracts. This article will give a deep discussion of precontracts from five aspects which include its meaning, constitutive requirements, theoretical basis, effectiveness and the liability.This article includes five chapters:Chapter I discusses the meaning and the history of precontracts, the classification of precontracts in both civil law and common law, and the distinctions between concepts related to precontracts.Chapter II shows the special aspects of precontracts comparing with real contracts, and analyses the nature of precontracts from four aspects including subject, intent indication, content and formal requirements.Chapter III studies the theoretical basis and system effect of precontracts. Freedom and trust are the bases of precontracts in civil law, and promissory estoppel is the basis in common law. Precontracts can compensate the weaknesses of contracting fault liability, and the rules of offer and promise.In Chapter IV, the author suggests an opinion to use the subjective and objective theory as the standard after analyzing consultation-necessary theory, contracting-necessary theory, content-determine theory and real-contract-considering theory.Chapter V discusses rules of compulsory performance, compensate for the damage, payment of breach of contract damages, penalty payment, and the liability for breach contract.