Study On The Pre-contracts In The Disputes Of Real Estate Sale

In Chinese judicial practice of real estate contract disputes, there are a lot of documents named of subscriptions, letters of intent and other forms of pre-contracts. However, as the nature of these contracts are vague, legal practitioners hold divergent opinions regard some related law affairs, let alone the ordinary consumers. Meanwhile, due to the relevant legislations are far from perfect, the number of this kind of disputes is significantly emerging and increasing nowadays. Based on the empirical research method, the typical disputes of pre-contract in real estate legal practice could be classified into four types. After a brief retrospective summary and four types of the typical disputes classification, the fact is that the courts usually take different standards on the similar cases. From the fundamental research of pre-contract, including its intendment, nature, classification, historical study and the comparative legal study, the pre-contract is undoubtedly an independent contract form. However, it is still controversial on the effect of the pre-contracts in the theory. Compared with formal contracts, the pre-contracts have their own economic functions, and the interests under the pre-contracts should be supported by legislators and judges. Through the method of interest balancing, the article found that the effect of the pre-contracts should be estimated according to the specific contents and included clauses in a pre-contract. In order to reach the goal of unifying the standards of juridical judgment, we should understand Article5of the Commercial Housing Sale Judicial Interpretation precisely. Regarding the nature of legal responsibility of violating the pre-contract, it is definitely the responsibility of breaching the contracts. Moreover, the scope of compensation should cover the opportunity loss, but not limited in the actual loss. Whether a pre-contract can be compulsory performed should depend on the similarity of its contents and clauses to a formal contract. One pre-contract which is almost similar to a formal contract can be required to continue to perform. For those pre-contracts which lack some other clauses comparing with a contract, we should analyze the nature of these lacked clauses. Based on this, we could determine whether to give the parties the rights of autonomy or to continue their contract obligations.