The Legal and Historical Panorama of Culpa in Contrahendo at Contractual Negotiations. An Approach from European and Latin American Law - Núm. 39, Enero 2013 - Revista de Derecho de la División de Ciencias Jurídicas - Libros y Revistas - VLEX 458990046

The Legal and Historical Panorama of Culpa in Contrahendo at Contractual Negotiations. An Approach from European and Latin American Law

AutorVladimir Monsalve Caballero
CargoProfessor of Law, School of Law - Universidad del Norte (Colombia)
Páginas126-148

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Introduction

Although the doctrine of culpa in contrahendo appeared in 1861 within the European legal system - when Ihering1 identified a legal remedy on the form of recovery action, vested on a party whose interests were harmed by hoping that a contract would come about, yet it was void-,2 Faggella3 is the first civil lawyer, around 1906, studying the abrogation of preliminary negotiations. The latter included the contract negotia-tions under the scope of pre-contractual liability. By the end of the ni-neteenth century, the majority of Italian scholars adhered to a principle of non-binding pre-contractual negotiations, and consequently the principle of no liability f or the rescinding party.4 Therefore, at the event of breached negotiations the applicable dogma accepted was freedom of contract. Yet, few scholars defended a theory of pre-contractual liability, based upon hypothesis such as la rottura delle trattative, la revoca della proposta, la vendita di cose altrui,[..].5

Italian jurisprudence and scholars alike, facing problems arising from the eventual damage caused at the formation phase, relied on article 1151 of the repealed 1865 Civil Code -which corresponds to article 2043 in the current Code - which is the rule prescribing tortious hypothe-

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ses.6 Later, and with the impossibility of framing the culpa in contra-hendo hypothesis within the structure of article 1151 - regarding the transgression of an absolute right -, many authors7 and some judicial decisions stated a new solution to the problem, given a general restric-ted interpretation of tort law. These circumstances led Faggella to resume his work on German studies, then opening their influence upon the French and the Italian legal systems.8

Faggella's work, all ups and downs aside, encompassed a landmark point within the Italian legal culture, and the European one likewise. Within a short period of twenty years, many judicial decisions invoked his work, systematically and reiteratively, when adjudication on the topic was required.9 Notwithstanding the heavy criticism directed to Faggella's work -especially his theory concerning a tacit agreement10-,

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one cannot ignore the fact that his doctrine still applicable and valid at instances such as the correttezza contractual principle and recovery of damages caused during the formation phase. Italy's jurisprudential debate arising from opposition or acceptance of Faggella's doctrine, led to the adoption of rules inspired by him, at the enactment in 1942 of the first modern European codes - the Codice Civile - . These rules favored a doctrinarian movement, which at the end was previous to some notions such as good faith, the corretezza, and the duty of loyalty.

Consequently, the legislatures of some countries tried to overcome any dispute then enacting direct rules on the issue. Thus, they esta-blished norms prescribing liability for damages upon the party guilty for invalidating the contract, as for instance those ones contained in the German civil code, the Swiss obligations code, and the 1950 Czech code. These provisions would perpetuate the liability based on culpa in contrahendo at some modern legal systems, and likewise would be the first restriction introduced upon freedom of contract in the nego-tiations' stage.11 Currently, however, few legal systems present such a kind of liability and its development has been grounded on judicial recognition. Therefore, this doctrine's legal implications and conside-rations fluctuate and, furthermore, depend on historical constructions, legal evolution, particular attachment to classic damages' nature and theories.

Hence, the present essay finds its sources both on civil law norms and exceptional norms of contractual statutes. But, it would exclude the regulation of consumption, given that such regulation is the result of rules on the subject adopted by the end of the 1980s and therefore, not related to the classic movements of the nineteenth century. Thus, my argument is that the absence of doctrinal unity regarding the dogmatic principles and consequences of pre-contractual liability has created an excessive regulation upon the negotiation stage within the civil law systems.

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Due to the challenge posed by researching on a new doctrine such as culpa in contrahendo, I decided to undertake a study on its historic evolution. Hence, I analyzed the three main scholars who were en-gaged with the topic in three different countries, i.e. Germany, Italy, and France. Regarding Germany, I explored the works of Ihering and his sources. He focused especially on Digesto and the rules over a case where one party would not state the extra commercium condition of the goods.12 Concerning Italy, I analyzed the theoretical foundations of Faggella,13 as well as the impact of Italian doctrines in French jurispru-dence and scholars. Finally, concerning France I studied the work of Saleilles,14 who ratified a powerful classical tradition and also strongly defended that dogma concerning freedom of negotiations at the pre-contractual stage.

Given that a detailed study of the historical evolution of pre-contrac-tual liability is already published,15 I would like to introduce, in the present essay, the current legal regulation at those countries recogni-zing culpa in contrahendo as an institution. Furthermore, I will explore the recent attempts on the subject made by the European Parliament and by the Council of the European Union as well - Council Regula-

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tions Rome I16 and Rome II17 - . Likewise, since part of my research has been focused on the impact of culpa in contrahendo in other legal systems, it was necessary to analyze its influence upon common law, Latin American Law, and Spanish Law.

The legal construction of culpa in contrahendo in european law

The legal adoption of the culpa in contrahendo doctrine is a recent phe-nomenon. In fact, few European legal systems include it, and they do it in the form of the prescribing general rules on the topic, such as the regulation of party's activities during the contract's formation phase. Said rules are contained in article 197 of 1940 Greek Civil Code, arti-cles 1337 and 1338 Italian Civil Code, and article 227 Portuguese Civil Code. The 1896 German Civil Code did not include any rules, yet with the statute reforming obligations law, on November 26th 2001, now it presents the doctrine in paragraph 311, Sec. 2.

The rules of the Civil Code of Greece say that

Au tours des négociations, pour la conclusion d'un contrat, les parties se doivent mutuellement la conduite dictée par la bonnefoi et les usages dans le rapports d'affaires. (Art. 197)

Celui qui a cause, par sa faute, un préjudice à l'autre partie, au cours des négociations, pour la conclusion d'un contrat, este tenu a réparation même si le contrat n'a pas été conclu. La disposition relative à la prescription des récla-mations nées d'actes illicites s'applique para analogie à la prescription de cette réclamation18 (Art. 198)

On the other hand, the Civil Code of Italy prescribes that

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Trattative e responsabilità precontrattuale. Le parti, nello svolgimento delle trattative e nella formazione del contratto, devono comportarsi secondo buona fede (Art. 1337)

Conoscenza delle cause d'invalidità La parte che, conoscendo o dovendo conos-cere l'esistenza di una causa d'invalidità del contratto, non ne ha dato notizia all'altra parte è tenuta a risarcire il danno da questa risentito per avere confi-dato, senza sua colpa, nella validità del contratto.(Art. 1338).

Notwithstanding the existence of a statute protecting a party affected by damages, the Italian Code included these provisions as part of a new tendency intended to replace the so-called general clauses. From the inclusion of these provisions flows the notion concerning the Italian Code as a modern one, because it is attached to an idea sustaining that human behavior under good faith should be regarded, and such consideration reveals the progress of law. Indeed, it is possible to relate progress to law, as it is related to any other expression of the human spirit.19

Influenced by the Italian codification - which was general upon other European ones20 -, article 227 of the Portuguese Civil Code21 affirms that

(Culpa naformação dos contratos) 1. Quem negoceia com outrem para con-clusão de um contrato deve, tanto nos preliminares como naformação dele, proceder segundo as regras da boa fé, so pena de responder pelos danos que culposamente causar à outra parte22".

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The previous article establishes a duty to act according to good f aith, as it is the case on comparative law - especially Italian law and German jurisprudence23 -. Here, the notion of good faith should be understood as an objective rule upon human action, since it classifies behavior as honest, right, and loyal - acting according to good faith24 -. Therefore, the duty of acting in accordance with good faith is present, and inde-pendent from whether the parties would conclude a contract.

Although it is certain that the provisions mentioned above are the only enactments concerning culpa in contrahendo, it is also true that the doctrine was taken into account at the time of designing normative b odies at these countries. Furthermore, the novelty presented by this legis-lation may suggest a growing interest by European scholars for the regulation - and intervention - on the parties' actions during contractual negotiations. That interest was evidenced by the B.G.B.25 in which many articles regulated issues of culpa in contrahendo, despite the lack of specific provisions on the code enacted on January 1st 1900. Prior to 2001, however, the doctrine was developed intensively by a judicial movement which, at the end, meant its...

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