On a daily basis, contracts are concluded between natural or legal persons. Therefore, many legal subjects have to enter into the precontractual phase of negotiations that eventually lead to a conclusion or a failure of the treaty. As first outlined by Jhering in 18611, the precontractual phase can establish a legal relationship in which precontractual obligations have to be respected.
In the following, the precontractual liability under the German, French and Portuguese law will be compared.
After an analysis of the historical origin of the precontractual liability in general and the presentation of the historical developments in Germany, France and Portugal, the legal problem, that needs a regulation in the legal orders, will be defined. Furthermore, in the com-parison of the regulatory framework, the similarities and differences of the current legislations in the three states will be examined based on various criteria such as the legal basis, the concrete precontractual duties and the relevance of the good faith.
Apart from comparing compensable damages, the legal institutes in those states will be classified. Before summing up the compar-ison of the roots and the legal institute by also including a grid of the main comparative aspects, important cases will be presented to understand the development of the precontractual liability in Germany, France and Portugal.
Table of Contents
1 Introduction
2 Comparative Analysis
2.1 Historical Origin
2.2 Historical Developments
2.3 Definition of the Legal Problem that the National Legal Orders Need to Solve
2.4 Regulatory Framework
2.4.1 Legal Basis
2.4.2 Precontractual Duties and the Good Faith
2.4.3 Compensable Damages
2.4.4 Classification
2.5 Important Cases of Higher Courts
3 Comparative Synthesis & Comparative Grid
3.1 Roots
3.2 Legal Institute
3.3 Grid
Research Objectives and Core Themes
The primary objective of this work is to provide a comparative legal analysis of precontractual liability within the German, French, and Portuguese legal systems, examining how each jurisdiction manages the transition from negotiation to contract conclusion and the resulting obligations.
- Historical evolution of the legal concept of culpa in contrahendo.
- Classification of liability as contractual, tortious, or a hybrid sui generis form.
- Comparative examination of legal bases, regulatory frameworks, and good faith duties.
- Analysis of compensable damages, including fidelity and negative interest.
- Case law evaluation regarding the termination of negotiations and disclosure duties.
Excerpt from the Book
2.4.2 Precontractual Duties and the Good Faith
-Germany- “Everyone must behave in such a way that they do not harm other through their culpable behavior.”: There are no primary obligations to perform, but the regulation of Secs. 241 II, 311 II BGB consists of protection obligations in the precontractual relationship to avoid damages to the rights, objects of legal protection and the interests of the other party.
The extent of the protection duties depends on the size and scope of the circumstances of the business practice. In a salesroom, measures have to be taken to protect the potential buyer and persons without any purchase intention and in particular their physical integrity. Moreover, the seller is responsible for the protection of the assets of those persons especially if they placed items in the seller’s custody. Nonetheless, the buyer can be responsible to exercise proper care for items owned by a seller, for instance in a car trial run.
In order to avoid undesired treaties, which one party would not have concluded if he had been informed properly, there are certain duties to provide information. Even though there is no general duty to provide information, the parties for instance have to correct revoked errors. Moreover, the party that disposes of intellectual or economic power as banks or insurance companies do, have to provide more information regarding the potential contract and regarding the main terms and conditions that were used. Nevertheless, duties to provide information collide with the principle of individual responsibility to inform oneself.
Summary of Chapters
1 Introduction: Provides an overview of the scope of precontractual liability and defines the methodological approach for comparing German, French, and Portuguese law.
2 Comparative Analysis: Offers a deep dive into the historical origins, developmental paths, and the specific regulatory frameworks defining precontractual liability in the three studied jurisdictions.
3 Comparative Synthesis & Comparative Grid: Synthesizes the findings, highlighting the common roots and distinct legal classifications of the three systems, summarized in a comparative table.
Keywords
Culpa in contrahendo, Precontractual liability, Good faith, German Civil Code, French Civil Code, Portuguese Civil Code, Comparative law, Contract law, Tort law, Negative interest, Duty to inform, Breach of contract, Legal negotiation, Liability, Quasi-contract.
Frequently Asked Questions
What is the core subject of this publication?
The work focuses on the legal concept of precontractual liability, known as culpa in contrahendo, and how it is implemented and interpreted in Germany, France, and Portugal.
Which jurisdictions are central to the study?
The publication covers the legal systems of Germany, France, and Portugal.
What is the primary objective of this work?
The aim is to identify similarities and differences in how these three states handle damages and obligations arising during the negotiation phase of a potential contract.
Which methodology is employed in this analysis?
The author uses a comparative legal method, analyzing historical developments, statutory frameworks, case law from higher courts, and scholarly literature.
What topics are covered in the main section of the book?
The main part details the historical roots, regulatory frameworks (including legal bases and good faith requirements), compensation rules (fidelity vs. negative interest), and a comparative classification of the liability nature in each country.
Which keywords best describe the research?
Key terms include culpa in contrahendo, precontractual liability, good faith, negative interest, and comparative legal systems.
How is precontractual liability classified in Germany compared to France?
In Germany, it is viewed as a quasi-contractual relationship, whereas in France, it is categorized as a form of tortious liability.
What role does "good faith" play in the precontractual phase?
Good faith serves as the foundation for disclosure duties, the obligation to conduct fair negotiations, and the restriction on the arbitrary termination of contract talks.
- Quote paper
- Elouisa Müller (Author), 2020, Precontractual Liability under the Portuguese, German and French Legal Systems, Munich, GRIN Verlag, https://www.grin.com/document/899453
