November 23, 2011

Pre–contractual liability : a comparative perspective

A pre-contractual liability is foreseen by both Principles of European Contract Law and UNIDROIT Principles of International Commercial Contracts for bad faith, or lack of good faith. It is true that the concept of pre-contractual liability is well-known in continental europe, even though not achieved by the same means. Established in Germany through the doctrine of culpa in contrahendo, through the civil code of 1942 in Italy including the concept of good faith and in France through the jurisprudence, a liability during the period of negociation before a contract is absent of the English common law.

Thus, according to the decision of the House of Lords, Walford v Miles, a withdrawal of any of the parties is possible at any time before conclusion of a contract. Surprisingly, Canada has decided otherwise, finding a pre-contractual liability through Estoppel.

The position of English law, though well understandable to keep will, through contract, as the main source of obligation, appears to be outdated. Would an european project of unication of the law of contract see the light, there is few chances that the English position would be kept. As far as I am concerned, I believe this subject is a perfect example of the difficulty of according the different legal traditions in Europe, of putting in a place an uniform contractual regime within the EU.

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