Contracting Fault System

The dissertation has systematically discussed the thesis on Culpa in contrahendo, which means in English "fault in negotiation", (shorted for c.i.c), and the approaches to the subject adopted in this article are the methods of comparative analysis,interest analysis and conceptional analysis .Besides the preface and the conclusion, the whole dissertation is divided into five chapters.Chapter 1 is on the research of fundamental doctrine of c.i.c. When one of foreign system is studied, the origin of it should be traced. So this chapter begins with the Jhring"s theory and studies the historical origin of it and observes the adoption of it by German civil code (shorted for BGB). Then the chapter goes on with the controversy of the doctrine. Through analysis, the author supports the opinion that the liability of c.i.c lies in contract law in nature, and concludes further that the basis of it exists in the Reliance. This chapter hat also discussed the concept and essence of c.i.c. The influences of the c.i.c on the other country are introduced at the end of the chapter. Chapter 2 has mainly discussed the types of c.i.c concretely. The institution has an open system, which has many different classifications among scholars. The c.i.c caused by invalid contract has been laid down in BGB, which is not adopted extensively by the other country by now. The c.i.c resulting from violation of duty of care in negotiation aims to patch up the lack of article 823 of BGB, which is the general stipulation of torts, and the article 831,which is about the executive helper. The latter is a German special institution. According to the classical contract law, there is no contractual liability but for a contract, so that the damage owing to breaking the reliance before the consummation of a contract is beyond the range of legal adjusting. But in the recent judicial practice, much attention has been paid to negotiation's suspension, from which the liability of c.i.c could be resulted. When the duty of disclosure is violated so that the intended contract can't be established, the negotiating party should also undertake the liability for his negligence during negotiation. Some scholars advanced that the contract caring for the third party, which has solved both the problems of expert's liability and those of the third party's protection aroused in buying and selling contracts,lease contracts and contracts for transportation and so on, should also be viewed as one of the types of c.i.c.Chapter 3 has discussed the doctrine of promissory estoppel, which is the comparable institution of c.i.c in Anglo-Saxon legal system. Both the institutions have common in the legal method of developing and the foundation of reliance. The both are trying to solve the problem of precontractual liability. Promissory estoppel doctrine, originating from the assumpsit, is established so as to rectify the injustice resulted from the rigid principle of consideration in contract law. In this chapter, the opinions of scholars about its concept, developing phase and attributes are also introduced. It is generally considered as one of contractual institutions, for it is stipulated in the Contract Restatement of U.S.A, and its Limitation is the same as that of contract. At its origin, its application has been confined to non-business fields, such as gift or donation, etc. Afterwards it also spread to the business areas, such as contractor bids, loan, and insurance, etc, to solve the problem of precontractual and violation of duty of disclosure. Whether the promissory estoppel should be applied in one case, is a task of the judge. When this is decided, he/she mainly thinks of such factors as follows: reliance, detriment, forseeability, the definite and substantial promises and so on. The debates on whether it has turned into an independent principle, and whether it has become a cause of action, are also introduced in this chapter. At the end the chapter, the author has studied three categories of interests advanced by Professor Fuller: expectation interest, rel...