| By examining the forms of pre-contractual agreements in comparative law, three elements of intentions, namely, consensus on the objective necessity of a contract, consensus to control the formation time of a contract, and consensus to regulate the process of contracting, can be distilled. Using this as a criterion, pre-contractual agreements can be categorized into four types, namely, “breaking through institutional barriers type”, “addressing contractual risks type”, “granting completion rights type”, and “regulating pre-contractual behavior type”. The “granting completion rights type” is more efficient in terms of the mechanism to transform into a formal contract and has economic value, but is completely absent in the Chinese judicial practice. Most of the relevant doctrines in China use a certain type of pre-contractual agreement as a model to delineate the conceptual scope of preliminary contracts and then deduce the rules for their validity. Such an approach would be unhelpful and could also lead to the crystallization of our imagination of pre-contractual agreements into a particular type, hindering the realization of consensual diversity. A more reasonable approach would be to adopt the framework concept of pre-contractual agreements to encompass various types of intention at the pre-contractual stage and resort to the determination and interpretation of the parties’ consensus for the validity of the pre-contractual agreements. In interpreting the lex lata, we should first clarify the type of pre-contractual agreement envisaged as a preliminary contract and the rules of validity applicable to it, and then widely recognize other types of pre-contractual agreement as viable. |
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