预约合同立法阙如下若干问题之刍议

The Study on Pre-contract in Legislation Absence

最高人民法院《关于审理买卖合同纠纷案件适用法律问题的解释》的第二条填补了我国预约合同法律规范上的空白,但诸多司法适用问题并未得到解决。预约合同是区别于本约合同、框架合同、附停止条件合同的独立性合同。预约合同应约定明确的期限。认定预约合同的关键在于合同双方是否具有明确在未来订立本约的合意,实践中以初步协议、认购书、订购书、预定书、意向书、备忘录等命名的部分书面材料并非预约合同,需根据其内容认定其性质。法国理论中的订立合同的单方面允诺和英美法上将行谈判的初步协议并非实质意义上的预约合同。预约合同产生诚信磋商以订立本约的效力,在某些条件同时满足时可以适用实际履行的违约救济方式,损害赔偿的范围不限于信赖利益并不包括可得利益,在没有价金条款时亦可适用定金罚则,但应兼顾公平原则。

The Interpretation of the Supreme People’s Court on Issues Concerning the Application of Law for the Trial of Cases of Disputes over Sales Contracts came into force on July 1,2012.ArticleⅡof the interpretation fills the gap in our law on pre-contract,but during judicial application,some issues have not been addressed and still remained unresolved.Different from such contracts like an original contract,framework contract,or tying contract in cease condition,the pre-contract is an independent contract within a definite time limit.The key to identifying pre-contract lies in a clear agreement made by the concerned two parties for making a certain contract in the future.In practice,preliminary agreement,subscription letter,reservation protocol,letter of intent,memorandum and etc.cannot be regarded as pre-contract only according to their forms,and those written materials should be identified based on their nature of content.Neither unilateral promise to conclude a contract in French theory nor preliminary agreement to negotiate in Anglo-American law is pre-contract in substance.Pre-contract is effective for making a certain contract with honest and credible negotiation.When a combination of some conditions is true,remedy of specific performance can be applied in breach of pre-contract,the scope of compensation is not limited to reliance interest with acquirable interest excluded,and taking equity principle into consideration simultaneously,fine of deposit would be applicable if a pre-contract is without price clause.