《买卖合同司法解释》第2条评析

Comments on Art.2 of The Interpretation of the Supreme People's Court on Issues Concerning the Application of Law for Sales Contracts

预约合同的认定不能仅凭内容确定性标准,关键在于当事人是否有明确的未来订立本约的意思。预约合同包括单务预约和双务预约,但区别于附条件的本约、优先权协议、选择权合同。实践中同时存在大量非预约的认购书、订购书、预订书、意向书、备忘录等,需根据情况具体判断它们的法律性质和适用规则。预约的效力是使当事人产生"诚信磋商以订立本约的义务"。预约制度有区别于缔约过失责任制度的存在价值。预约能否实际履行应根据预约未决事项属于主观未决事项还是客观未决事项加以判定。违反预约的损害赔偿应根据缔约所处阶段进行确定,关注违约与损害之间的因果关系和可预见性规则。原则上不排除当事人主张本约履行利益的可能性。

The identification of preliminary contracts can not depend merely on the criteria of determinable of contents.It should aslo depend on the obvious willing of the parties to conclude a definitivesale contract.The preliminary contracts include the unilateral and the bilateral preliminary contracts. However,they are distinguished from the definitive conditional agreements,the option contracts and the choices contracts.Because there are so many purchase offers,purchase orders,subscription books,letters of intent and memorandums in practices,we need to determine their legal nature and their applicable rules based on a case-by-case verification.The legal effect of a preliminary contract is to force the parties to perform the obligation of concluding a sales contract base on buona fede. The rules about preliminary contracts have a different functional respect to the rules about cupla in contrahendo.Whether the party can claim for a special performance depends on the nature of the pending matters-subjective or objective.The damages are calculated based on the various stages of contracting.It focus on the cause between the breach of contract and damages,and the rule of predictability. In generally,it is also possible that the parte claims for the positive interests of the contract definitive.