On Legal Effects Of Pre-contracts And The Remedies

The pre-contract made by parties who are both in a mental freedom position should be legally protected at the stage of the negotiation.The essential criterion for judging the real contract or the pre-contract is whether the parties have the declaration of intention to make a new contract in the future.as an independent system,the pre-contract should be distinguished from the real contract,non-binding text,the conditional contract and the periodical contract due to the differences between them.there is time interval between the real contract or the pre-contract,the agreement of the pre-contract is temporary.There is no essential difference between the theory of dutiful consultation and the theory of should the contracting which are concluded in the theory on the effect of the pre-contract because they both reveal that parties attain the effect of the real contract as much as possible by the negotiation with good faith,and disclaim the liability of parties due to the negotiation on good faith.It is not easy to say whether the liability for breach of pre-contract includes forced contracting in a word.Forced contracting can be applied into these contracts that are detailed and objectively pending for negotiation on the time of forming the pre-contract,because the duties requested are not beyond the original commitment.In the case that the real contract has not been made,there is no sufficient legal basis for the court to allow remedies equivalent to interests of performing the real contract for the parties of the pre-contract.The pre-contract is inherently fixation for trading opportunities.The court have discretion to require default party undertake the liability for damage which is including opportunity interest on the principle of fault degree and predictable norms.