预约合同效力和违约救济的实证考察与应然路径
耿利航预约合同效力和违约救济的实证考察与应然路径
An Empirical Investigation of and a Proper Approach to the Validity of Preliminary Contracts and Remedies for Their Breach
期刊名称：《法学研究》
期刊年份：
作者：耿利航
单位：山东大学法学院
中文关键词：预约;本约;信赖利益;机会损失
英文关键词：preliminary contract;contract;benefits of reliance;opportunity loss
中文摘要：
欧陆法上的预约是给那些经法院判断后当事人承诺最后交易的诸如认购书之类的初步（中间）协议贴上的一个标签。合同法的目标是执行允诺，保护当事人基于合意的期望。对于约定有将来订立合同条款之协议（无论是否称之为预约合同），法律效力可能是应当缔约，也可能是善意磋商。法院应当区分事实，以探究当事人真意为出发点，既不能任由当事人违反当初的完成交易之承诺，也不能施加给当事人从未允诺的强制缔约责任。对于违约救济，也应根据法律效力区分对待，前者救济应同本约，后者守约方只能请求赔偿信赖利益损失，且一般情况下不应给予机会损失赔偿救济。
英文摘要：
A preliminary contract stipulating that the parties have planned to reach a final contract in a later time is labeled Vorvertrag in German law. Under such a contract, the parties are committed to carrying out the transactions or signing the final contract as ordered by the court. The "appointment-negotiation" approach adopted by Chinese Supreme People's Court to the trial of disputes over this kind of preliminary contract is based on a misuse of the legal concept. The purpose of the Contract Law is to implement the commitments and protect the expectations of the parties to a contract based on mutual consent. For a preliminary contract (such agreement may also be called letter of intent or commitment letters), the binding effects of the contract may be either that the parties should enter into a final contract or that they just need to continue the process of negotiation in order to reach an ultimate agreement. The court should find out the facts and explore the true intentions of the parties. It should neither allow the parties to break their commitment to carrying out the final transaction, nor impose any compulsory obligation of reaching an ultimate agreement to which the parties have made no commitment. The remedies for breach of contract should also be treated differently in light of the commitment made by the parties. In the former case mentioned above, the remedies should be the same as for the final contract itself, while in the latter case, the abiding party may only claim for losses on the grounds of reliance, and usually should not be given remedies for opportunity loss.
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