A Typological Analysis of the Liability for Specific Performance in Preliminary Contracts

Yizhuang Jiang

doi:10.54097/kk07f497

Authors

Yizhuang Jiang

DOI:

https://doi.org/10.54097/kk07f497

Keywords:

Preliminary Contract, Specific Performance, Typological Analysis

Abstract

China’s current legal framework does not expressly stipulate whether the rule of specific performance is applicable to preliminary contracts, leaving an unresolved dilemma for both theoretical research and judicial practice. By reviewing the three predominant scholarly perspectives on specific performance and analyzing divergences in judicial rulings, this paper affirms that, grounded in the principles of party autonomy and practical necessity, the “content-determinative theory” should serve as the paradigm for adjudicating the validity of liability for specific performance in preliminary contracts. On this basis, a typological analysis of preliminary contracts can be conducted employing dual subjective and objective criteria, categorizing them into: defective preliminary contracts arising from subjective causes; defective preliminary contracts arising from objective causes; and preliminary contracts with complete content. The study concludes that: specific performance is inappropriate for defective preliminary contracts stemming from subjective causes; for those resulting from objective causes, a distinction must be drawn based on whether the breaching party acted intentionally or negligently; and specific performance is applicable to preliminary contracts whose content is complete.

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