Research On Precontract Of Commercial Buildings Sales

As an important way to achieve the purpose of purchase buildings,the precontract of commercial buildings sales has been widely used.But initially there are no legal provisions about its quality,so it sometimes can be difficult for judicial decisions.It will inevitably lead to some unfair phenomenon if there is no clear standards for judging and everything are based on the decisions of the judges.This situation of judicial chaos has been relieved in a certain degree after the introduction of relevant judicial interpretations.However,law did not make detailed and specific provisions about legal consequences of precontract of commercial buildings sales,responsibility for violation of precontract of commercial buildings sales,the scope of damages and other issues.With the deepening of practice,as well as the guiding cases of the Supreme People's Court,judges tend to make no mistakes while judging the quality of precontract of commercial buildings sales currently,but as for the specific scope of compensation,they usually cannot reach a unified conclusion or judge with good reasons.There often appear such situations that the same case can get quite different judgments from different courts,and the scope of compensation is also quite different with unclear ground of decision.There are still controversies about those problems in theory.In the judicial practice,there also exists a problem of lack of specific criteria for judging and action guide.All those problems remain to be studied in the future.The precontract of commercial buildings sales and commercial buildings sales contract are two separate contracts.They both happened in the process of buying and selling commercial buildings,and there is a close link between them.The precontract of commercial buildings sales is an independent contract,not a front agreement or appendage of commercial buildings sales contract.Through a brief analysis of a communique case,the transformation of the court trial ideas and the actual situation in the process of buying and selling commercial buildings,a conclusion can be drown that the precontract of commercial buildings sales is independent from the commercial buildings sales contract.There are differences between them in content,purpose and other aspects,and they should be accurately distinguished in practice.There are three different views on the legal consequences of the precontract of commercial buildings sales,among which the "content determinism" is more reasonable.The view of "must negotiate" advocated that there is too little constraints that giving the two parties the obligation of negotiating integrally,and it may not be able to achieve the purpose of fixing trading opportunities.Otherwise the view of "must sign" requires the two parties to sign the contract,that is,the commercial buildings sales contract.The request is too rigid,and is also a heavy burden.The view of "content determinism" proposes that the legal consequences of precontract of commercial buildings sales cannot be generalized,because the legal consequences are depended on the content to a certain extent.Therefore the legal consequences of precontract of commercial buildings sales should be distinguished according to its content.A fixed absolute conclusion cannot be applied to a variety of practical cases,so specific circumstances should be specific analyzed in practice.Violation of the precontract of commercial buildings sales should bear the liability for breach of contract,and its commitment should include the actual performance,but it is special.As for when the actual performance can be applied is subject to specific conditions.The scope of damage compensation of violation of the precontract of commercial buildings sales is also a difficult problem to deal with in practice.Through the analysis of two communique cases,it can be concluded that the liability for breach of precontract of commercial buildings sales includes the reliance interest loss and the performance interest loss of the precontract.But the compensation for the performance interest loss is subject to specific conditions.The reliance interest loss of commercial buildings sales contract is not included in the scope of compensation,but it can be used as a reference to make up for the damage of the observant party in practice.