The Legal Effect Of The Precontract

With the establishment and improvement of the socialist market economy in our country,the transaction is becoming more and more frequent,and the transaction content is becoming more and more complicated.Sometimes it is difficult for people to agree on everything about the contract after a short period of negotiation.The current law lacks systematic and clear rules on precontract,so judges are often at a loss when dealing with cases involving precontract.The legal effect of precontract is the core of the precontract system.Therefore,this passage intends to discuss it from four aspects.The first part is to raise the question.Precontract is the contract that the parties agree to sign contract in the future.From the perspective of current Legislation,Maritime Code of the Peoples Republic of China doesn't point out the legal effect of insurance precontract.Article 4of Interpretation of the Supreme People's Court on the Relevant Issues concerning the Application of Law for Trying Cases on Dispute over Contract for the Sale of Commodity Houses and article 2 of Interpretation of the Supreme People's Court on Issues Concerning the Application of Law for the Trial of Cases of Disputes over Sales Contracts indicate the uncertainty between "should sign a contract" and "must negotiate".From the perspective of Scholars' views,there are three kinds of views: "must negotiate","should sign a contract" and "content decides the legal effect".In fact,the essence of the divergence between "should sign a contract" and "must negotiate" is that the agreement of "sign a contract in the future" should be considered as consequent obligation or methodological obligation.The question that the legal effect of precontract should be single or multifarious also requires further consideration.The second part is the comparative study of the legal effect.Because of the limited reference material,this passage selected Germany and the United States to make a brief introduction.First of all,both countries began to pay attention to the trust relationship,which is the inherent requirement of the spirit of modern contract law.The precontract should take on the responsibility of providing security for market transactions and protecting the reasonable trust between the parties.Secondly,on the choice of legal means in the negotiation period,Germany chooses the precontract system and the contracting fault system,while the United States only chooses the precontract system.The choice of the two countries closely related with its original legislative background.In the framework of the existing contract law,our country should choose to match different type of precontract with different remedy.The reasonable trust from negotiating in good faith should not be abandoned.Finally,from the perspective of the application,the precontract has existence value in consensual contract.The precontract comes into being in consequence of transaction,and its legitimacy can't be denied.In real contract and formal contract,it is possible to make a precontract based on the reasonable trust of the parties.The third part is the requirements to generate the legal effect of precontract.Before generating the legal effect,the precontract needs to undergo three stages: formation,validity and effectiveness.Firstly,the formation of precontract requires two or more parties and consensus on sign a contract in the future.The object of precontract can be either the signature of the contract or the good faith negotiation.As long as the parties have not agreed on written form,the precontract can be made freely in any form permitted by law.The requirements of including the main provisions of the contract are inoperable and easy to cause the risk that the precontract is mistaken for the contract.So it is not a suitable requirement for the precontract in our country.Secondly,the valid requirements of the precontract include: a)the parties' corresponding capacity for civil conduct;b)the real declaration of will;c)without the breach of the mandatory provisions of the laws and administrative regulations,and violation of public order and social customs.Unless the parties' agreement,the precontract will entry into force after meeting the formation requirements and the valid requirements.The fourth part is the identification of the legal effect.The precontract result from the parties' consensus,therefore,the legal effect of the precontract should be identified in accordance with the different declaration of will.The legal effect of the precontract can be either "must negotiate" or "should sign a contract".The identification of the legal effect is a identification for the will of the party in fact.Contract text is the clearest origin of parties' will.If the parties have expressly agreed upon obligation of sign a contract or negotiate in good faith,the precontract should produce corresponding legal effect.Besides,all the facts outside the contract text should be valued to identify the will of the parties.When the will is unclear,it requires sufficient reason to identify the legal effect of the precontract as "should sign a contract".As the consequence of the parties' will,the legal effect of the precontract for real contract and formal contract should be identified as "should sign a contract".