All entries for Thursday 24 November 2011

November 24, 2011

Culpa in contrahendo – Week 8

The culpa in contrahendo seems to be a unique invention in the landscape of European legal systems. Was it a stroke of genius or just a needed stopgap? The breech of precontractual obligations is in the French and the English Legal system subscribed to the Law of Tort, as well as the Rom II Regulation does it in Art. 12.

The Munich Commentary of the BGB speaks about the c.i.c. as a form of liability on reliance of its own kind, which is situated between the liability of the Law of Contract and the Law of Tort.

Rudolf von Jhering who is known to be the actual founder of the principle of culpa in contrahendo did not have in mind the cases which are ruled today by this principle. He rather thought of applying the c.i.c. to situations of the falsus procurator or the situation of a seller without a existing item to sell.

However the Courts had been willing to adopt his principle to fill the gap which was left by the German Tort Law falling short in protecting the parties in precontractual obligations.

Today the c.i.c. broadens its application further and further. Only the guideline of protection of the party who relied on a possible contract cannot longer explain the scope of cases which are ruled by this principle. The protection of consumer, the protection of the economical weaker party and the protection of the investor seem to rule more and more the c.i.c..

The establishment of a legal institution to a place in a system to which it does not belong causes incoherence. The lack of coherence seems to cause a loss of guidelines. The c.i.c. has become the kraken of the BGB. It reaches for more and more territory to rule.

The German BGB, which is known for its strict and straight principles has in this point betrayed its own order. A system which is based on rationality and its own proper order should obey its own principles to avoid the decline of itself!

November 2011

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