A Study On Pre-Contract

Pre-contract is a contract that is to conclude a contract in the future,which is a development of trust principle and a natural extension of party autonomy principle. As the further market economy in our country is developing,trade forms being more and more complicated, pre-contract has been widely embedded into the civil and commercial activities.but at present, the General Principles of The Civil Law and Contract Law in our country have no clear statement about the pre-contract. 《Judicial interpretation 3 of sales contract》generally regulates the forms of pre-contract and the remedies for breach of contract,and basically confirms the pre-contract system officially, and has a positive guiding significance on the judicial practice,although. But on the other hand, because of the sketchy regulation about pre-contract in this judicial interpretation, no matter in theoretical research or in trial practice, there still a controversies and confusions. So the author intends to deeply explore and study the meaning of the pre-contract, legal characteristics, differences with other relevant concepts, theoretical basis, the relevant conditions to establish it, legal effect and the ways to undertake the responsibility of breach of contract.The main contents of this article, in addition to the introduction, includes four parts:The the first part is the basic theory of the pre-contract. First, it analyses the meaning of the pre-contract, secondly it summarizes its legal characteristics and discriminate with relevant legal concepts, finally, the classification of the pre-contract and its enlightenment to our country and the theoretical basis of the pre-contract are discussed.The second part discusses the special requirements to establish a pre-contract in addition to the general requirements,which are the two parties of a contract and the the intention expressed being clear and consistent,including two aspects of substantial requirements and formal requirements. The most core in this section is to put forward an opinion that,the certainty of its content should at least meet that it has the object of original contract and the parties when we set up a pre-contract.The third part puts forward the opinion that we should judge the legal effect of pre-contract comprehensively according to the subjective and objective factors by discussing and analyzing several different views and theories of the pre-contract.The effectiveness of the both parties agreed has priorities, only if the both parties agreed to have to conclude a contract, but the contents of the pre-contract do not contain the necessary provision of original contract, it has the negotiation effect,since the objectivity shall prevail. When both parties have no agreement,but the contents of pre-contract have the essential terms of original contract, it has the contracting effect; while they do not have the necessary terms, it has the negotiation effect.The fourth part discusses the responsibilities of breaching a pre-contract, it Specifically analyses the pre-contract having negotiation effect, and pre-contract which contains pending subjective matters having contracting effect should not be enforced to perform. The pre-contract which has detailed contents or just containing pending objective matters having contracting effect can be enforced to perform.The scope of compensation for breach of contract mainly includes the loss of trusting benefit and expect interest loss, but it shall not exceed the prospect interest when original contract is fulfilled. The liquidated damages is in accordance with the agreement when there is one, but when it’s too high or too low, a application for adjustment is available; When there is no agreement,it is in accordance with the standard of compensation for damages.Punitive rule about earnest money is mainly the deposit limit which can refer to the amount of object in original contract.