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3 This question requires candidates to explain a pre-contractual liability, distinguish between this and liability for breach of contract and state the conduct of a party that will result in pre-contractual liability under the Contract Law of China.
(a) Pre-contractual liability refers to the liability incurred by a party’s conduct, as prescribed in the Contract Law, which causes a loss or damages to the other party during the process of negotiating a contract but the contract is finally not concluded.
The major difference between the pre-contractual liability and the liability for breach of contract is: under the pre-contractual liability there is no contract by the two parties who have negotiated to conclude a contract; while under the liability for breach of contract an effective contract has been concluded but one of the parties breaches it. Under pre-contractual liability the form of liability is compensation for loss while under liability for breach of contract the form of liability includes specific performance, liquidated damages and damages.
(b) In accordance with Article 42 of the Contract Law, a party with the following conduct in negotiating a contract shall be liable for the losses caused to the other party:
(i) under the pretext of concluding a contract, to negotiate in bad faith;
(ii) deliberate concealment of the important facts relating to concluding a contract or providing false information;
(iii) other conduct in violation of the principle of good faith.
答案：
3 In relation to the Contract Law of China:
(a) explain a pre-contractual liability, and distinguish between this kind of liability and the liability for breach of contract;
(b) state various conducts of a party that will result in a pre-contractual liability.
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