On The Nature Of Precontract And Liability For Breach Of Contract

The precontract is a kind of contract that parties agree to make a certain contract in the future.The substantive law of our country is lack of specific provisions for precontract.The Supreme Peoples Court only explains the concept of the precontract,instead of distinction or responsibility on the current trial.Although there is a long history of theoretical research which has been creating plenty of papers on precontract,most of them focus on the analysis and evaluation at the theoretical level and lack of research results which should be based on solving prominent problems in practical judicial trial proceedings.Therefore,it is very necessary to put forward practical solutions to the problems.In the first beginning of this paper,a comprehensive comparison of the latest typical cases having different trial results is taken as the starting point.The purpose is to reveal three kinds of trial thoughts and some typical problems in the field of trial practice.On this basis,this paper focuses on the nature discrimination and liability determination when the contract is written,rather than elaborating the obligation of bona fide negotiation and culpa in contrahendo when the contract has not been established.Therefore,on the basis of analyzing the trial difficulties of the above cases and referring to a large number of theoretical studies,this paper makes key answers to two urgent problems which shall be summed up as the nature of "doubtful contract" and the specific way to bear the liability for breach of contract.First of all,how to distinguish the precontract from the general contract,that is to say,"the question on the nature of doubtful contract".The viewpoint of this paper is that the difference of subjective factors and objective conditions shall be applied in comparing different purpose when signing the contract.The above scientific conclusion whose core is to explore the true meaning of the parties is based on the text of contracts and the general theory of judging the nature of precontract.Secondly,if it is identified as a precontract,how to carry out specific remedies for breach of contract,that is to say,"responsibility for breach of contract".The viewpoint of this paper is that continue to perform and compensation for losses discussed in following are the main manners of the breach of the precontract.According to the continue to perform,it can be regarded as the extension of " the question on the nature of doubtful contract ".In other words,on the basis of the accurate judgment of contact,discussing the different subjective purposes of the parties reflected by the meaning factors which would be contained in the contract text is aim to choose compulsory deal or continuing consultation,if the basis of performance of the contract remains.As for the compensation for losses,we should focus on the objective reality and decide whether the contract can be performed continually and then distinguish the margins of reliance interests and performance interests.When weighing the amount of compensation,opportunity cost should be used as an adjustment tool to provide a convincing basis for calculating the final amount of compensation.To sum up,with the aforementioned conclusions,this paper tries to solve the outstanding problems in the listed cases to the greatest extent,and provides feasible ideas for improving the deal of precontract and standardizing the practical trial process.