预约合同认定的理论难题与实践破解

Theoretical Problems and Practical Solutions to the Recognition of Precontracts

最典型的预约合同约定当事人均承担将来缔约的义务,其实质是当事人自我设定强制缔约义务,即当事人基于契约自由限制将来的契约自由。预约合同规则的重点是构成要件和缔约义务的效力强度。《民法典》第495条规定的是双务预约合同,但也可适用于其他预约合同类型。合同编司法解释第6条增设了预约合同本身须为合同的要件,既与司法解释第3条相呼应,也符合合同拘束力来源的现代理论。预约合同约定的将来缔约期限应为合理期限。双方仅约定将来一定期限内磋商谈判的,也可能构成预约合同,双方均承担基于诚信原则合理磋商的义务。意向书等缔约阶段性文件是否构成预约合同,取决于约定的具体内容。订立认购书等文件的原因若为标的物尚不存在或依法无法出售,双方已对标的、数量等主要内容达成合意时,可认定双方之间成立正式合同。预约合同的内容再详尽,也不能直接被认定为本约。

The most typical content of precontract is that each party undertakes the obligation to make a contract within a certain period in the future,and its essence is that the parties set the compulsory obligation to make a contract,namely the parties restrict their future freedom of contract based on the freedom of contract.The key point of this rule is to determine the constituent elements and effectiveness of contracting obligation.Article 6 of the Interpretation of Several Issues Concerning the Application of General Provisions of Book Contract of Civil Code is based on the double precontract stipulated in Article 495 of the Civil Code,and adds the requirement that the precontract must constitute a contract,which conforms to the modern theory of the source of the binding force of the contract.Same as a term contract,the future contracting period stipulated in an advance contract shall be a reasonable period.If the two parties agree to make a contract when the conditions are fulfilled,the rules of appointment may also be applied in part by analogy.If the parties only agree on a certain period of consultation and negotiation in the future,it shall also constitute a contract,and both parties shall undertake the obligation of reasonable consultation based on the principle of good faith.Whether the signing stage document such as the letter of intent constitutes an precontract depends on its specific content,and cannot be determined by its name alone.If the reason for signing the subscription letter or other documents is that the subject matter does not exist or cannot be sold according to law,when both parties have reached an agreement on the subject matter,quantity and other main contents,one party refuses to sign a contract,it may be deemed that the two parties have formed a contract.No matter how detailed the content of the precontract is,it cannot be directly identified as the contract.