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 forma-tion 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 ab-sent 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 de-duce the rules for their validity.Such an approach would be unhelpful and could also lead to the crystal-lization 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 a-greements.In interpreting the lex lata,we should first clarify the type of pre-contractual agreement en-visaged as a preliminary contract and the rules of validity applicable to it,and then widely recognize oth-er types of pre-contractual agreement as viable.
preliminary contractsformal contractspre-contractual agreementsCulpa in Contrahen-do
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