An Empirical Study On Liability For Breach Of Preliminary Contract

Article 495 of the current Civil Code has stipulated about preliminary contract,and this article stipulates only in principle that if one party fails to perform the obligation to contract as agreed in the preliminary contract,the other party may claim liability of the party for breach of the preliminary contract,but it fails to specify what kind of liability for breach of contract shall be assumed.In practice,due to the lack of specific operability for preliminary contract disputes,there have been different judgments in similar cases.In theory,scholars disagreed with each other for two parts: the validity of the preliminary contract,and the liability for breach of preliminary contract.On the validity of the preliminary contract,there are theories such as "negotiations must be made","contracts must be concluded",and "contents are determined".On the liability for breach of preliminary contract,there are disagreements about whether the preliminary contract can continue to be performed after a breach of the contract,and about the scope of damages after the preliminary contract is breached.Through studying 107 latest cases disputes from November 1,2020 to December 31,2020 in the PKULAW.COM and 22 representative cases from2005 to 2018,three problems can be found about the liability for breach of preliminary contract: the determination of the nature of preliminary contract,the determination of the validity of the preliminary contract and the identification of the liability for breach of preliminary contract,among which the last one is the main issue.The disputes of liability for breach of contract in practice is mainly reflected in the determination of whether the preliminary contract can continue to be performed,the scope of damages and the application of deposit penalty.In view of the above problems,combined with practical cases,improvements can be made in three aspects.First of all,legal principles can be applied to supplement and improve the ambiguities of legal provisions.For example,the principles of good faith can be applied in terms of whether to continue to perform,and the principle of fairness can be applied in terms of determining the scope of damages.Secondly,judges can reason about cases through reasonable theoretical basis,such as insisting on the ideas of compensation for the loss of the contract’s trust interest in the aspect of compensation for damages.Finally,the Guiding Cases can play a guiding role in future judgments.In terms of the scope of damages and the application of the deposit penalty,fair judgments can be selected as guiding cases to guide the judgements of similar cases.