预约合同的相关问题探讨——以仲崇清诉上海金轩大邸房地产公司案为例

Exploration on Issues Relating to Pre-contract:A Case Study on Zhong Chongqing's Prosecution of Shanghai Jinxuandadi Real Estate Company

现代市场经济交往离不开契约,然而社会环境的复杂多变在带来机遇的同时也存在更多的风险,预约合同作为将来订立一定契约之契约由此进入人们的视角。预约是相对于本约而言的概念,是合同法体系中较为特殊的一类合同,它通过当事人之间的协议性约定对将来订立一定合同的机会予以确定,以期降低风险和缔约成本。近年来,基于法律或事实上的原因,订立预约合同的现象普遍存在,在商品房买卖、民间借贷、房屋租赁以及高等学校毕业生就业等合同中大量运用,尤其常见于不动产交易领域。预约制度立足于双方当事人的意思自治,充分尊重契约自由,又为法律干预保留了空间,具有较高的理论和实践意义。

Exchanges in contemporary market economy cannot go without contracts, whereas the complex social environment has brought a lot of risks despite the opportunities it brought, so pre-contract attracts people＇s attention. Reservation is a concept in contrast with the contract itself, acting as a special kind of contracts in the system of the contract law. It determines the opportunity to sign a prospective contract through the agreement made by the parties involved, aiming to reduce risks and costs in signing a contract. In recent years, based on legal or factual reasons, it is common to sign a pre-contract which is widely used in commodity apartment transactions, private lending, housing lease and college graduates＇ employment contracts, especially in real estate trade. Based on the autonomy of the two parties involved and the full respect of freedom of contract, the reservation system also reserves some space for legal intervention, so it is of great theoretical and practical significance.