Research On Liability For Breach Of Precontract

The pace of economic development is gradually accelerating,which has spawned many contract systems to meet the needs of different scenarios.Among them,precontract system has been applied in practice for a long time in China,much earlier than the provisions in legislation.Due to the unique legal value and system position,when the parties have a considerable degree of expectation for the future contract,but are limited by the current conditions are not mature,the two parties sign an precontract first.On the one hand,lock the opportunity of the transaction,on the other hand,leave enough time to consider and prepare for the conclusion of the contract in the future,so as to better realize the purpose of the contract.In the past,China recognized the status of precontract through judicial Interpretation of Commercial Housing Sales Contract and Judicial Interpretation of Sales Contract,but there were no clear provisions on the validity of precontract and liability for breach of the contract.Although the Civil Code formally included precontract,it still did not respond to the problems left over from history.The academic circle has never stopped the discussion on precontract.Although the research is gradually deepening,various theories hold their own,and no basic consensus has been formed.When it comes to judicial judgment,there are also great differences on the validity of precontract and relief for breach of contract,leading to widely different results of judgment and inconsistent results of similar cases.Based on the collection of gazette cases,classic cases and other cases,this paper finds out the problems in practice,then analyzes the causes of the problems,and finally puts forward the author’s opinions by referring to the relevant system design of foreign law.Thus,the paper is divided into four parts:The first part focuses on the judicial status of the application of liability for breach of precontract.100 cases were selected through the judgment document network and PKULAW,and 26 of them were enumerated in detail.It was found that the problems in practice were mainly reflected in the inconsistent identification of the validity of the precontract.Some people thought that there was only consultation obligation,while others thought that it could be enforced.In terms of the relief for breach of precontract,some judgments are vague in defining whether the nature of liability is contracting fault or liability for breach of contract,there are doubts about whether the scope of compensation for damage is trust interest or should include performance interest,and whether the obligation of this contract can be compulsorily performed and the penalty of deposit is not applicable.The second part analyzes the causes of the above predicament.On the one hand,China’s legal provisions are not perfect.Before the promulgation of the Civil Code,only judicial interpretation made relevant provisions,which were full of disputes.After the promulgation of the Civil Code,the precontract was officially stipulated,but the problems left before were not solved.On the other hand,in judicial practice,courts adopt different trial paths,which will lead to different results of liability for breach of precontract.The third part talk about the design of foreign law on precontract system.The Continental law system has higher requirements on the binding force of precontract,and the provisions are more conservative.The Common law system is relatively flexible,different types of precontract classification,corresponding to different legal consequences.The author is more inclined to learn from the provisions of the Continental law system,which has a relatively unified direction of dispute resolution and supports compulsory performance of the contract,but does not learn from the scope of damage compensation demarcation and does not support the merger of lawsuits.Part four puts forward the proper solutions of the liability system for breach of contract.First,it should be made clear that the original purpose of the precontract is to enter into this agreement and only to temporarily prevent its formation.Secondly,from the legal system,the autonomy of the will,the protection of interests,the advantages of the system and the promotion of economic development,it proves that the contract can be forced to perform.Furthermore,the compensation for breach of precontract should be limited to the scope of trust interest and performance interest.Finally,it is clear that the liquidated damages and deposit system can also be applied in the precontract,and the liquidated damages can be increased or decreased as appropriate;Deposit amount should be limited by 20% according to the main contracts,when liquidated damages and deposit appear at the same time can only choose one.