Study On Culpa In Contrahendo

After German famous legist Jhering in put forward the theory of Culpa In contrahendo in 1861, its influence is very profound. A lot of Civil Law System countries adopt the theory of Culpa In contrahendo. Some Anglo-American Law System countries also got some influence. Via the development of more than 100 years, this system has developed to become one huge complex, suitable scope extensive, stand independently in the civil liability of system of liability for breach of contract and liability for tort. In the contract law of the People's Republic of China that promulgated in March 15,1999, the system of Culpa In Contrahendo have been established to solve the problem put forward by violating the obligation of pre-contract. Otherwise, the scholars have large dispute on the theory such as theoretical foundation, the concept, compensation scope and suitable type etc. More study has to be done. With the method of history and comparative analysis and on the basis of other scholars' outcomes, this article attempts to define this liability. At the same time, it discusses the scope of application and the scope of compensation. At last, the author advances the opinion and hopes to provide some advice to the improvement of the theory and practice of legal enforcement. This paper divides into four parts. The first part is the theoretical foundation and the development of this theory. The author mainly introduces the creation and development history of this system. At the same time, the article analyzes the theoretical foundation. The author considers that this liability was come into being on the basis of principle of honesty and credibility and established on the criticism of the freedom of contract and autonomy of will. The second part of article is the definition of Culpa In contrahendo. Through the analyzing the course of concluding a treaty, the author defines the liability. Through comparison of this liability and related responsibilities, the author gets the conclusion that this liability is independent from liability for breach of contract and liability for tort. The article also discusses the four requirements and analyzes the content and the duration and the sort of the obligation of pre-contract. The third part of article discusses the suitable scope of application of the theory. Through the study of the possibility and necessity of this liability during the period of execution of the contract, the author preliminarily discusses the specific application in the period of execution of the contract from theory and legislation and legal enforcement. The fourth part of article is the analysis of the legal consequence of Culpa In Contrahendo. The author mainly studies the compensation object and scope of Culpa In Contrahendo, and makes certain analysis on its compensation restriction. The author puts forward that the main compensation object is reliance benefit, and the inherent benefit is also be considered. For the compensation of reliance benefit, it should not exceed to performing benefit.