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Abstract:

In the process leading up to the formation of a (main) contract, preference and option contracts occupy a special place. They meet a social need to secure (to some extent) the conclusion of an envisaged main contract when one cannot or does not yet want to conclude it. In a preference contract, the beneficiary (only) has priority to contract if the promisor decides to contract. In an option contract, the promisor has already decided to contract and the beneficiary has the actual right to conclude the main contract. Book 5 of the Belgian Civil Code makes the importance of these contracts explicit by giving them a (brief) legal basis (art. 5.24-5.26 of the Civil Code). Here, inspiration was drawn from the recent reform of French contract law (art. 1123-1124 CC). The practice makes frequent use of these contracts. This study maps this contractual practice. Parties usually pay little attention to the drafting of their preference or option contract. In the absence of a clear contractual framework, they fall back on the law of obligations (Book 5 of the Civil Code). The study examines whether this additional legal framework is sufficient. Practice shows that application of these common rules is not so obvious. In particular, discussions arise about the qualification, validity and consequences of these contracts. This thesis examines this gap, develops a general legal regime and proposes additions to the Civil Code to provide a more appropriate safety net for existing discussions. To this end, it draws on comparative law insights from France, the Netherlands, Switzerland and Germany. The study focuses in particular on the relationship of the preference and option contract to other pre-contractual agreements, the requirements of formation and validity and the extent to which the rules specific to the main contract already apply to the conclusion of the preference and option contract, the limits to the power of the promisor and the temporal dimension.