November 28, 2012

Pre–contractual period in French and German law

French and German legal system have a different perception from the pre-contractual period. In German law, they want to lengthen the contractual responsibility to the pre-contractual period. In this period, the liability is similar to the contractual liability. §311 II BGB : “An obligation with duties under section 241 (2) also comes into existence by :

  • the commencement of contract negotiations (Vertragverhandlungen)

  • the initiation of a contract where one party, with regard to a potential contractual relationship, gives the other party the possibility of affecting his rights, legal interests and other interests, or entrusts these to him, (Vertragsanbahnungen) or

  • similar business contacts. (ähnlichen geschäftlichen Kontakte) »

In french legal system, there is nothing in the code civil and case-law seems to retain just the first solution, that is to say the commencement of contract negotiations.

The liability during the pre-contractual period in French law is tortious liability and sanctions depend from conditions of the refuseal to contract. (article 13382-1383 from code civil). Since the case-law « Manoukian » from the 26th november 2003, we can have reparation for the wrongful termination of the negotiations only when it's for negative interest. But the principle is the freedom to contract or not, so there is no sanction for the breach of negotiation or just when it is a wrongful termination.

In german law, when there is a liability, the theory of culpa in contrahendo applies : the special nature of pre-contractual phase merits special treatments. The contractual liability applies. It's not exactly like the contractual liability, for certain authors it's a 'liability sui generis”. It's neither tortious or contractual but a liability with its owner rules. German law applies the principle that there is an economic risk of the negotiation.

We can find three causes which generate the liability of one party when it breaches negotiations in german law :

  • One party can be forced to damage compensation if it violated an obligation to protection (Verletzung von Sorgfaltspflichten)

  • The second case is the violation of the obligation to inform. (Verletzung einer Aufklärungspflicht).

  • The third case concerns both french and german legal system : the wrongful termination of the negotiation (unbergründeter Abbruch von Vertragsverhandlungen). Only when the party who breaks negotiations did a mistake, it can engage its liability.

French and German legal systems have two different systems of liability for breach of negotiations. In french law, it's tortious liability while in german law, the liability is based on contractual one.


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