The Abolition of the Concept of “Causa” in French Civil Law (original) (raw)
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Precontractual liability is liability that arises out of a harmful conduct that occurs during the formation period of a contract. Where the harmful conduct occurs during international negotiations, a conflict of laws issue arises. The determination of the applicable law to precontractual liability can be a complex and tedious task, which is why the European Legislature has provided a special conflict-of-law rule in Article 12 of the Rome II Regulation on the applicable law to non-contractual obligations. Through this provision, the European Legislature aims to achieve uniformity between EU Member States, while providing an appropriate conflicts rule. The present essay assesses the European Legislature’s attempt at codification and offers a commentary of Article 12 of the Rome II Regulation. It comes at a time when the Commission is scheduled to submit a report on the application of the Rome II Regulation to the European Parliament, the Council, and the European Economic and Social C...
In this essay, the author aims to briefly analyze the character and application of the institutions which are functionally compared to culpa in contrahendo in four distinctly different legal systems, namely in English, French, German and Polish law by positioning them on the traditional contractual/delictual liability axis. The author thereby hopes to gain a better insight into the essence of pre-contractual liability and aims to conclude by critically assessing the strengths and weaknesses of each system. The essay is structured into seven main parts: it begins with a short presentation of the institution's pedigree and a brief description of model regulations, namely PECL and DCFR. The opening part is followed by an analysis of four national interpretations of culpa in contrahendo. The article ends with the author's concluding remarks as to the character of pre-contractual liability.
The Conceptual Analysis of 'Culpa in Contrahendo': A Critical Study in EU Private International Law
This study critically depicts the position on culpa in contrahendo in the European Private International Law. This critical description is based on the conceptual analysis of culpa in contrahendo. In this context, first, the conceptual elements and the legal character of culpa in contrahendo have been determined in consideration of the differences between the national legal systems and more broadly between the two main legal traditions (Common law and Civil law traditions), and hence, the rules on the determination of the competent court and applicable law in the European Private International Law has been analysed in this respect. To briefly summarize the study, first, the elements of culpa in contrahendo liability are the presence of the contract negotiations, breach of the pre-contractual duty of good faith, fault, damages, and causation-at-fact. The recognition and legal situation of the pre-contractual duty of good faith seems to be the main point of divergence between different legal systems. That is, in Common law systems the said duty is not recognized and therefore its breach is not sanctioned, whereas in most Civil law systems the duty is sanctioned. Nonetheless, it has also been ascertained that, the breach of the pre-contractual duty of good faith is being compensated under the institutions of promissory estoppel and misrepresentation in the Common law legal systems, albeit these institutions have more specific elements than those for the liability for culpa in contrahendo. Following the determination of the fact that the liability for culpa in contrahendo exists in most legal systems with varying scopes and names, it has been found that its legal characterization is different in every national legal system, and there are different theories in this respect. The most plausible of these theories is the one that defines the culpa in contrahendo as a fiduciary liability arising from a breach of a special proximity between the parties, and purports the application of contractual liability provisions in the absence of provisions specific to that responsibility. However, it has also been shown that different legal systems prefer to define culpa in contrahendo as a contractual or tort liability (France), or by adopting the case-by-case characterization (Portugal, UK, Ireland). Evaluating the European Private International Law rules under the light of this analysis, it has been found that, in its step-by-step development, the European Private International Law has, first, accordingly categorized the culpa in contrahendo as a non-contractual liability, but determined the applicable law as the law applicable to the contract that has been negotiated. It is important to note that the European Private International Law does not acknowledge or reject the pre-contractual duty of good faith, regarding the differences between Common law and Civil law systems.