Considering that the institute of preliminary contract generates a growing academic interest and more and more participants of civil circulation apply this institute in their civil-juridical relationship, moreover, having evaluated that within the recent decade while dealing with disputes regarding preliminary contracts the Lithuanian courts have interpreted the same matters differently, as well as considering that in the area of Lithuanian and foreign study of civil law there are different positions upheld regarding the contract’s essential conditions, kind of civil liability resulting from a breach of this contract, security of the contract and, generally speaking, regarding a stand of preliminary contract in the system of civil law, in this Master’s thesis the systemic question if a preliminary contract is a kind of agreement or if it is a pre-contractual document shall be deemed the underlying one together with the question if the relationship arising from such a contract is essentially pre-contractual relationship, as the majority of Lithuanian law academics and The Supreme Court of Lithuania (SCL) in its judgments, points out. While answering this question in this Thesis, laws of logics are invoked, a concept of this institute in Roman law is referred and, on the grounds of SCL’s practice, the essential elements as well as the essential conditions of a preliminary contract that is deemed to be a form of agreement are analyzed. It is stated that only in the case of approaching a preliminary contract as an agreement and one of the kinds of civil contracts, whereas juridical relationship arising from this contract – as the contractual relationship, a preliminary contract can be clearly marked off from legally non-binding documents, the application of the kinds of securing obligations resulting from a preliminary contract can be explained, and the application of a penalty as one of the forms of civil contractual liability in the area of SCL’s practice can be clarified, etc. On the grounds of the results of the accomplished analysis and the Thesis’s findings it is proposed to consider that a contractual relationship between parties emerges after the entering into a preliminary contract, whereas pre-contractual relationship ends; with reference to this attitude the problematical issues regarding the kinds and forms of the civil liability and other contrarieties that can be found in the SCL’s explications can be solved. It is also suggested setting the clear rule stating that according a preliminary contract, which is regulated in the Article 6.165 of The Civil Code, an advance payment is allowable.
Raktažodžiai: preliminary contract, preliminary agreement, pactum de contrahendo, culpa in contrahendo, content of contract