预约的违约责任研究

Research on the liability for breach of appointment

预约是能够独立产生法律效力的契约。《民法典》对预约的责任形式缺乏具体规定,理论学说与司法实践均存在分歧。预约可区分为具有强制缔约效力的预约与仅具有善意磋商效力的预约两种,对于前者,应适用继续履行的责任形式,损害赔偿的范围也应当延伸至履行利益;对于后者,不宜适用继续履行的责任形式,损害赔偿的范围应限定于其信赖利益的损失。违约金责任与定金责任对预约同样适用,依据预约的区分原则,其适用中面临的问题可得到解决。

Appointment is a contract that can independently produce legal effect.The“Civil Code”lacks specific provisions on the form of appointment responsibility,and there are differences between theoretical doctrine and judicial practice.Appointment can be divided into two types:an appointment with the effect of compulsory contracting and an appointment with only the effect of good faith negotiation.For the former,the form of continued performance should be applied,and the scope of damage compensation should also extend to performance benefits.For the latter,the form of continued performance should not be applied,and the scope of compensation for damages should be limited to the loss of its reliance interests.The liability for liquidated damages and deposit liability are equally applicable to appointments.According to the principle of distinction between appointments,the problems faced in their application can be resolved.