On The Civil Liability Of The Sales Person In The Commercial Housing Precontract

The commercial housing precontract plays an important role in commercial housing transaction,but there's no stipulations related to the commercial housing precontract in Chinese contract law.It is greatly disputed both in theory and in practice on civil liability of the sellers who violate the precontract obligations in the commercial housing precontract.The theory of commodity housing precontract is the basis of dealing with the liability of the sellers.There are different views on the nature of sellers' responsibility.This is an issue that concerns to whether and how sellers should bear the responsibility,the scope of compensation,the application of punitive damages and how to cover the loss of housing buyers.This paper is divided into four parts.In the first part,starting from the scope of precontract,the concept of commodity house precontract will be defined.Then the nature and characteristics of the precontract will be analyzed based on the theory of freedom of contract and the principle of good faith.Through comparing different theories,this paper will endorse the view of "forced contracting",over the validity of commercial housing precontract.In the second part,three theories(liability of culpa in contrahendo;liability for breach of contract and concurrence between the two liabilities)will be compared.This paper will point out the disadvantages both in the theory of liability of culpa in contrahendo and concurrence of liability.Combined with the current legislation and judicial practice,this paper favors the view that seller should bear the liability for breach of contract if he violates the obligations in the precontract.In the third part,the responsibility of the housing sellers is analyzed detailedly'from the four elements of unlawful activity,consequence of damages,causal relationship and mental fault.This paper explores whether all these elements are required in the identification of the sellers' responsibility and comes to the conclusion that the elements of unlawful activity and mental fault are a must for the responsibility.While the elements of consequence of damages and causal relationship are unnecessarily needed which depends on the buyers who claims in what way the seller should be liable for the breach of contract.The fourth part focuses on the ways how sellers assume their responsibility.It is including:to continue performance of the contract,to pay a penalty,to return the deposit and to pay the compensation of damages.The scope of damages includes not only the payment of housing purchase with its interest,but also the loss of reliance benefits and expectation interest.The principle of "complete compensation" should be adopted in the remedy for housing buyers.And,punitive compensation ought to be applied if the buyers make such a claim.The application of punitive damages is helpful to increase the cost of breaching a contract and contain such unlawful activity.