中国预约合同制度研究

Currently, China's legal framework for preliminary contracts (reservation contracts) remains incomplete, with a lack of specific and systematic provisions. The concept itself is not uniformly defined, resulting in inconsistent judicial practices regarding legal validity, liability for breach, and applicable standards. Academic research on the topic largely remains theoretical, offering limited guidance for practical application. This paper examines the legislative status and typical judicial cases involving preliminary contracts in China to identify the key institutional deficiencies. It then analyzes major academic debates concerning the formation, validity, and breach of such contracts. Drawing on the French legal distinction between obligation of result and obligation of means, the paper clarifies that the obligation to conclude a contract (in a preliminary agreement) is an obligation of means. On this basis, it reinterprets the legal effect of preliminary contracts and excludes specific performance as a form of liability. Finally, it introduces the concept of “loss of opportunity” as a regulatory mechanism to address the inadequacies of traditional pre-contractual liability in protecting the reliance interest.