Analysis On The Case Of Business Contract Dispute Of Real Estate Between Xunjie Company And Shudu Company

Although there is no provision in the Contract Law, but pre-contracts in practice are widespread. Especially in the real estate sale, they usually appear in the form of the subscription book, purchase agreements. Interpretation of the Supreme People's Court issued on March 2 for the first time using the term "pre-contract" in our legislation, acknowledged the subscription book, purchase agreements and other instruments the nature of the pre-contract. It confers the legal status of an independent appointment contracts on pre-contract and includes the provisions of the liability for breach of contract appointment. But what is the pre-contract, pre-contract with what kindofeffect, settingoffanother round of academic discussion on the pre-contract. How to distinguish the pre-contract with the contract, how to determine the validity of the contract are still difficult in the judicial practice. Thus, it is necessary to define on the concepts and features of the pre-contract, find the difference between pre-contract and contract. And to explore the effect of the pre-contract based on the classification of the pre-contracts.Under the continental law system and common law system, there are real differences of the concept of pre-contract. Chinese scholars define the pre-contract as "the contract that will make parties enter into certain contracts in the future."Pre-contract and contract are significantly different. In practice, finding the distinction between pre-contract and contract is still difficult. The core standard is the true meaning of the parties. Only on the content of completeness can not accurately distinguish pre-contract with contract. And when we can't determine whether the document is a pre-contract, we can't recognize it as contract. Otherwise it would be contrary to the meaning of parties. According to the classification of Mr. Farnsworth, Chinese scholars divide pre-contracts into two categories on the basis of whether they have the principal terms of the contract. The "main clause" should be able to determine the type and nature of the contract. The "main clause" shouldn't be limited to parties, the subject and the number. Based on the different types of pre-contract, different types of pre-contracts have different effects. The pre-contract with main clauses have the effect on entering into the contract. The pre-contract without main clauses have the effect on negotiating. About the understanding and application of Article 36 of Contract Law, "main obligations" should be restricted to fulfill all the main obligations.