| Abstract [eng] |
This Master’s thesis analyzes the dynamic interpretation and application of the institute of a preliminary agreement in Lithuanian court practice within recent decade. The author emphasizes the substantial problems concerning the preliminary agreement; introduces the evaluation of the positions made by the courts, versions of the solution of the problems. Obligatory elements and conditions of the content of the preliminary agreement are set in this thesis. It is emphasized that the parties of the preliminary agreement must specify the essential conditions of the main agreement, among which, undoubtedly, the object of the main agreement must be pointed out. Inconsistency of interpretation of the payment made pursuant to the preliminary agreement in the court practice is chronologically introduced and evaluated and conclusion is drawn that the transfer of money made pursuant to the preliminary agreement does not fail to meet the requirements of mandatory provisions of law. On the contrary, the seriousness of the intention of the party is indicated by the transfer of money. Moreover, it is emphasized that the set condition of the advance payment in the preliminary agreement cannot be the base to qualify it as the main agreement if the content of the agreement solely shows that the parties are in favour to conclude the preliminary agreement. In addition, the problematic issue concerning civil liability is analyzed. On the basis of the analysis of the court practice the author discloses the amount of damages which should be reimbursed in the breach of the preliminary agreement. It is emphasized, that they cover not only direct damages, but also monetary value of the lost opportunity. The number of methods to calculate this structure applied in the court practice does not only give a feeling of surprise but also creates the sense of uncertainty for the parties of the civil-juridical relationship. In connection to this it is suggested to establish a single method to calculate the amount of lost opportunity in the court practice. The author highlights the consistent following of the rule “the party of the preliminary agreement cannot be compelled to conclude the main agreement” in the court practice. However, this rule is forgotten in consideration of the preliminary agreement which is specified in the Article 6.401 of the Civil Code – in this case the courts ignore the principle of the freedom of the agreement (at least regarding the purchaser). In order to avoid further disagreements and obscurities the legislator is offered to unilaterally establish the statement that the preliminary agreement cannot be enforced in any case. |
