The Legal Effect of the Preliminary Contract

Siyun Mo; Yinglai He

doi:10.54691/ket2h378

Authors

Siyun Mo
Yinglai He

DOI:

https://doi.org/10.54691/ket2h378

Keywords:

The Preliminary Contract; Legal Effect; the Civil Law.

Abstract

The legal effect of the preliminary contract should be based on the theory of contracting. Comparing to the theory of negotiation and the theory of content determination, the theory of contracting is more appropriate in terms of respecting for parties’ autonomy and meeting the purpose of concluding the preliminary contract. Besides, the theory of contracting better reflects the modern society’s respect for and implementation of the principle of good faith, to maintain the security of transactions. Moreover, it is advantageous to the operation of judicial practice when applying the theory of contracting to the legal effect of the preliminary contract. Based on the theory of contracting, failing to perform the preliminary contract constitutes breach of it. It’s supposed to apply the fault principle to judge whether the parties breach the preliminary contract or not, but the burden of proof is on the defendant.

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References

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