学术研究前沿| Crossing the Abyss: A Comparative Analysis of the Enforceability of Preliminary Agreements

研究成果：Crossing the Abyss: A Comparative Analysis of the Enforceability of Preliminary Agreements

作    者：Marta Infantino, Larry A. DiMatteo, Wang Jingen & Lena Zervogianni

发表期刊：Emory International Law Review，2023 (4):629-688.

内容简介：A major unresolved issue in international business transactions relates to the enforceability of preliminary agreements. Preliminary agreements cover a long list of instruments commonly used in most sectors of the economy. The common presumption is that these agreements are not enforceable. The correct answer is much more nuanced. For example, a preliminary agreement may be held to be unenforceable but at the same time be the basis for legal liability. There are strong differences between the civil and common laws on the issues of good faith negotiations and the enforceability of preliminary agreements, but there is also sustained uncertainty within legal systems. This article reviews Chinese, French, German, and Anglo-American law on the twin issues of enforceability and liability. It shows that the trend has been in favor of greater judicial scrutiny of such agreements that has led to greater enforceability and the expansion of available remedies, whether an agreement is deemed to be enforceable or unenforceable.

The issue of preliminary agreements and their place in the overall legal scheme has become less clear as courts have recognized their necessity as modern contract transactions have become more long-term and complex. The countries selected for review provide a three-part taxonomy. First, preliminary agreements are unenforceable due to the lack of certainty of terms and party intent. Second, preliminary agreements that are detailed may be recognized as enforceable contracts. Third, there is a broad middle area in which preliminary agreements are unenforceable as a whole but can be the basis for liability for independent obligations found in the agreements. These independent obligations include an implied-in-law or an implied-in-fact obligation to negotiate in good faith, duty of confidentiality, and duty of exclusivity to not negotiate with other parties. It is in this middle area where there has been a convergence in legal systems and, at the same time, where the issues of liability and remedies have become more uncertain. Because of the ubiquity of these agreements, the possibility of unexpected liability remains pronounced in international business negotiations.

期刊简介：Emory International Law Review是美国埃默里大学法学院主办的著名国际法专业学术期刊，创刊于1987年。每年出版四期，每期发表2-4篇学术论文，1-2篇评论。

作者简介：王金根，法学博士，陈守仁商学院副教授，中国政法大学国际银行法律与实务研究中心研究员，美国佛罗里达大学、韦恩州立大学访问学者。主要从事国际商法、比较合同法与信用证法等教学与科研工作。主持福建省社科联项目2项，参与国家社科基金项目1项。出版专著《信用证不当拒付损害赔偿责任研究》、教材《国际商法：原理与案例（英文版）》。在Berkeley Journal of International Law, Emory International Law Review以及《比较法研究》等国内外法学刊物发表论文40余篇，其中多篇论文被Corbin on Contracts, The Law of Letters of Credit: Commercial & Standby Credits以及International Sales Law: A Handbook等权威著作援引。曾荣获中国政法大学优秀博士论文奖、中国国际经济法学会优秀论文二等奖等荣誉。担任加拿大著名银行法期刊Banking & Finance Law Review匿名审稿人。入选福建省高层次C类人才。