Culpa in contrahendois aLatinexpression meaning "fault in conclusion of a contract". It is an important concept incontract lawfor many civil law countries, which recognize a clear duty to negotiate with care, and not to lead a negotiating partner to act to his detriment before a firm contract is concluded. InGerman contract law,§ 311 IIBGBlists a number of steps by which an obligation to pay damages may be created.
By contrast, inEnglish contract law,and many other common law jurisdictions, there has been stulted judicial acceptance of this concept. The doctrine ofestoppelhas been mooted by academics as a good model, but judges have refused to let it be a sidestep of the doctrine ofconsideration,saying estoppel must be a shield not a sword, and calling instead for Parliamentary intervention.[1]On the other hand, in the case of land,proprietary estoppeleffectively created obligations regardless of any pre-existing contract. In theUnited States,however, courts have allowedpromissory estoppelto function as a substitute for the consideration doctrine. This movement was stimulated by the acceptance of the concept in section 90 of the firstRestatement of Contracts.
German law
editRudolf von Jheringis credited with developing theculpa in contrahendodoctrine. Originally, according to the prevailing interpretation of the German Civil Code, there was no such legal doctrine. The courts saw a gap in the law and used theculpa in contrahendodoctrine to fill it.
Since the 2002 reform of the law of obligations,culpa in contrahendois provided for by statute §311(2) in connection with §§280(1) and 241(2) of the German Civil Code).
Belgian law
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Article 1382 of the Belgian Civil Code is the general legal basis to pursue compensation for damage as a result of aculpa in contrahendo.
Puerto Rico
editThe doctrine of Culpa in contrahendo applies in Puerto Rico.[2]
See also
edit- Waltons Stores Ltd v Maher
- Friedrich Kesslerand Edith Fine,Culpa in Contrahendo, Bargaining in Good Faith, and Freedom of Contract: A Comparative Study,77 Harv. L. Rev. 401 (1964).
References
edit- ^The English and Scottish Law Commissions invitedHarvey McGregorto draw up a "Contract Code" (being a codification and fusion of English and Scots contract law), but neither country has adopted his 1993 recommendations.
- ^https://ij.org/sc_newsletter/private-prisons-pyrrhic-victories-and-a-single-family-hotel/[bare URL]
- Rudolf von Jhering, “Culpa in contrahendo oder Schadensersatz bei nichtigen oder nicht zur Perfection gelangten Verträgen”,Jahrbüchern für die Dogmatik des heutigen römischen und deutschen Privatrechts,vol. 4, 1861, pp. 1–3; reprinted in Rudolf von Jhering,Gesammelte Aufsätze(1881). Jhering argued that the "reliance measure" ought to be the proper one in "not quite" contracts, e.g. where there is a misunderstanding as to the terms of the contract.