The Study Of Commodity House Pre-Contract

In the growing process of real estate industry,the pre-contract of commercial housing transaction has made great contribution to alleviate the shortage of enterprise funds,active enterprise capital flow and promote the development of China's real estate industry.At present,developers generally sign a pre-sale agreement with buyers.However,due to the current lack of norms,different standards and differences in views,for the appointment after the breach of contract remedies,damages,etc.,is also very vague.With the continued growth of housing prices across the country,parties may face the risk of huge house price differentials.This paper is divided into five chapters,which include the research background,the concept of pre-contract,the definition of pre-contract,the effect of pre-contract,and the breach liability of pre-contract.Covering all parts of the pre-contract system,this paper aims to provide a view to the legislative and judicial practice.The first chapter is the introduction,which introduces the relevant legislation of the pre-contrtact in China and abroad,and the trend of theoretical research,expounds the practical significance of the reservation theory,and briefly introduces the basic methods and approaches of this paper.The second chapter is an overview of the pre-contract,which is divided into two parts: the conception and legal nature.At present,there is little controversy on the concept of pre-contract between academics and practitioners.There are differences in the understanding of nature.The relationship between the pre-contract and contract is independent but also connected relation.The third chapter is the definition of the pre-contract.Though there is a consensus on the constituent elements of the reservation,there are still difficulties in defining the pre-contract and contract.When some special pre-contract are regarded as the present contract,two elements are needed,including contain the main content of the purchase contract and the delivery of money,but in this paper,a new opinion is proposed that there should be a third condition,which is that there is not a consensus about signing the contract in the future.The fourth chapter is the effectiveness of the pre-contract,which mainly discusses the three kinds of views about the precontract's effect,such as the honest negotiation theory and the content decision theory.After a comparative analysis,this paper indicates that the current judicial interpretation adopts the view of contract-signing,and also considers that the view of contract-signing and that of content decision have the same legal effect.The fifth chapter is the duty of pre-contract breach.It mainly discusses the dispute of three kinds of defaulting remedies,such as continuing performance,damage compensation and deposit penalty,and the relationship between pre-contract duty and fault liability of contracting parties.This article proposes that continuing performance should not perform as default relief,and in discussing the scope of compensation for the appointment,this paper proposes that it should contain the opportunity loss based on the trust interest of this contract,but no more than the performance benefit of contract,so as to be more scientific,reasonable and comprehensive,to protect the damages suffered by the breaching party.