Culpa in contrahendo

Culpa in contrahendo is a Latin expression meaning "fault in conclusion of a contract". It is an important concept in contract law for 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. In German contract law, § 311 II BGB lists a number of steps by which an obligation to pay damages may be created.

By contrast, in English contract law, and many other common law jurisdictions, there has been stulted judicial acceptance of this concept. The doctrine of estoppel has been mooted by academics as a good model, but judges have refused to let it be a sidestep of the doctrine of consideration, 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 estoppel effectively created obligations regardless of any pre-existing contract. In the United States, however, courts have allowed promissory estoppel to function as a substitute for the consideration doctrine. This movement was stimulated by the acceptance of the concept in section 90 of the first Restatement of Contracts.

German law

Rudolf von Jhering is credited with developing the culpa in contrahendo doctrine. 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 the culpa in contrahendo doctrine to fill it.

Since the 2002 reform of the law of obligations, culpa in contrahendo is provided for by statute §311(2) in connection with §§280(1) and 241(2) of the German Civil Code).

Belgian law

Article 1382 of the Belgian Civil Code is the general legal basis to pursue compensation for damage as a result of a culpa in contrahendo.

Puerto Rico

The doctrine of Culpa in contrahendo applies in Puerto Rico.^[2]

References

^ The English and Scottish Law Commissions invited Harvey McGregor to 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.

[1] The English and Scottish Law Commissions invited Harvey McGregor to draw up a "Contract Code" (being a codification and fusion of English and Scots contract law), but neither country has adopted his 1993 recommendations.

[2] ttps://ij.org/sc_newsletter/private-prisons-pyrrhic-victories-and-a-single-family-hotel/ ^{[bare URL]}

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Contract law

Formation
Capacity Offer and acceptance Meeting of the minds² Abstraction principle^4,5 Posting rule¹ Mirror image rule Invitation to treat Firm offer Consideration^1,4 Implication-in-fact Collateral contract
Defences
Misrepresentation Mistake Threats and unequal bargaining power Illegality and public policy Unconscionability Culpa in contrahendo² Force majeure Frustration of purpose Impossibility Impracticability Hardship Set-off Illusory promise¹ Statute of frauds¹ Non est factum¹ Unclean hands¹ Accord and satisfaction¹ Exculpatory clause
Interpretation
Parol evidence³ Contract of adhesion Integration clause Contra proferentem UNIDROIT Principles
Dispute resolution
Choice of law clause Forum selection clause Hague Choice of Court Convention Arbitration New York Convention UNCITRAL Model Law Mediation Singapore Mediation Convention Enforcement of foreign judgments Hague Judgments Convention
Rights of third parties
Privity of contract¹ Assignment Delegation Novation Third-party beneficiary
Breach of contract
Anticipatory repudiation Cover Exclusion clause Efficient breach Deviation Fundamental breach
Remedies
Specific performance³ Money damages Liquidated, stipulated, or penal damages³ Rescission
Quasi-contractual obligations
Promissory estoppel¹ Quantum meruit¹ Unjust enrichment Restitution Negotiorum gestio²
Duties of parties
Duty of honest contractual performance (or doctrine of abuse of rights)⁶ Duty of good faith (also implied covenant of good faith and fair dealing or duty to negotiate in good faith)⁷ Contract A and Contract B in Canadian contract law⁶
Related areas of law
Conflict of laws Commercial law
By jurisdiction
Australia Canada China (mainland) Ireland India Saudi Arabia United Kingdom England and Wales Scotland United States
Other law areas
Tort law Property law Wills, trusts, and estates Criminal law Evidence
Notes
1 Specific to common law jurisdictions 2 Specific to civil and mixed law jurisdictions 3 Historically restricted in common law jurisdictions but generally accepted elsewhere; availability varies between contemporary common law jurisdictions 4 Specific to the German Bürgerliches Gesetzbuch and other civil codes based on the pandectist tradition 5 Explicitly rejected by the UNIDROIT Principles of International Commercial Contracts 6 Specific to Canadian contract law both in Québec and in the country's common law provinces 7 Specific to civil law jurisdictions, the American Uniform Commercial Code, and Canadian jurisprudence in both Québec and the common law provinces pertaining to contractual and pre-contractual negotiation
v t e

German law

Belgian law

Puerto Rico

See also

References