我国《民法典》视野下的预约合同探析

Research on the Preliminary Agreement from the Perspective of Civil Code of China

预约合同最初在于规避要物合同,实现“合意就能产生债”的观念。我国首次以法律的形式规定预约合同体现在《民法典》第495条,是对社会需求的回应。预约合同的认定标准为当事人约定将来一定期限内订立本约的合意性、内容上包含合同必要条款的明确性。《民法典》列举的预约合同的表现形式,去除了意向书、备忘录的规定,不应被包括在表现形式的“等”字范围内。预约合同的违约责任包括继续履行,与缔约自由并不冲突。预约合同的损失赔偿不同于本约的缔约过失赔偿责任,是预约合同自身的履行利益,包括实际损失、机会损失,但本约的可得利益损失除外。

At first,the original purpose of preliminary agreement is to avoid the material contract,so that“agreement can generate debt”in the field of material contract.It is the first time for China to stipulate the advance contract in the form of law,which is reflected in Article 495 of the Civil Code,which is the response to social needs.The recognition standard of a complete contract is the agreement of the parties to conclude the contract within a certain period in the future.The content of the preliminary agreement should stipulate the necessary terms of the complete contract.The forms of performance of preliminary agreement listed in the Civil Code,excluding the provisions of letter of intent and memorandum,should not be included in the scope of“etc”in the form of expression.The legal effect of breach of a preliminary agreement is to bear the liability for breach of contract,which includes continuous performance and does not conflict with the freedom of contract conclusion.Different from the liability for negligence in contract making,the compensation loss of preliminary agreement is the performance interest of itself,including the actual loss and opportunity loss,but not including the loss of available interest in complete contract.