预约合同法律问题研究

The Study on the Legal Issues of Preliminary Contract

预约作为延缓和保障本约缔结的手段在市场交易中不可替代。但我国立法层面规定极为有限,且局限于部分合同类型,而司法实践更是操作不一,亟须完善。在认定预约时,应着眼于内容确定性、法律约束力两项核心构成要件,并以"应当缔约说"来确定其法律效力。违反预约之后果为守约方选择适用实际履行或赔偿损失,且赔偿范围大致相当于本约的信赖利益,适当考虑机会利益,从而实现有约必守与契约自由之统一。

Preliminary contract, as a means of delaying and guaranteeing the conclusion of formal contract, cannot be replaced in the market. However, the legislative provisions are quite limited and confined to parts of the contact type. What＇s more, the judicial practice is so mixed that needs to be improved. So it＇s necessary to focus on certainty of content and legally binding to definite the preliminary contract, and use the theory of ＂formal contact should be concluded＂ to determine it＇s legal effect. Liabilities for breach of preliminary contact are that observant party choose actual performance or compensation for damages. If the latter to be chosen, then the compensation scope is roughly equivalent to the reliance interest of formal contact, and opportunity interest should take into account, so as to realize the doctrine of contract must be followed and the freedom of contract.