Culpa In Contrahendo In Contracting

Culpa in Contrahendo is a significant question that has been discussing by legislation and scholars since Roman legalism. Until the middle of the 19th century Rudolf v. Jhering raised the theory "Culpa in Contrahendo " ,which marked the formal birth of the theory "Culpa in Controhendo ". Theory of the civil law that belongs to the continental legal system has also had a great effect on Anglo-American legal system. Culpa in Contrahendo is a kind of civil liability that should be undertaken when one side fails to fulfill his obligation according to the Principle of Honest and Credibility in the process of signing a contract because of intention or culpa, which results in that the contract does not hold water, or is canceled or invalid so that the other side's benefit of trusting suffers loss. The concept of Culpa in Controhendo includes two subjective factors: "intention" and "culpa" so it is more proper to call it "Fault in Contrahendo " rather than "Culpa in Contrahendo". The reason for it is that the liability from contracting not only comes from "culpa" but also includes "intention". If the method of calling is not changed, it is easy for people to misunderstand that there is only liability of culpa. Theory of Culpa in Contrahendo has compartmentalized the liability of the contract in a new way since it appeared. It introduces a new kind of civil liability which should be undertaken in the process of signing a contract into the original theory system. It impacts the traditional opinion that civil liability is divided into Liability for Breach of Contract and Liability for Torts in Roman legalism. There exists explicit boundary among Culpa in Contrahendo ,Liability for Breaking Agreements and Liability for Torts in some aspects such as premise of causing liability, character of failing to fulfill the obligations and so on. Following Liability of Contract , Liability for Torts , Obligations Arising from Unjust Enrichment and Obligations Arising from Voluntary Service, Culpa in Contrahendo is the fifth kind of independent civil liability. It should be stipulated as common civil liability in legislation. At present there are about four different doctrines about the theoretical basis of Culpa in Contrahendo. They are Doctrine of Torts, Doctrine of Law Stipulation ,Doctrine of Law Behavior and Doctrine of Principle of Honest and Credibility. There are different theories about constitution prerequisite for Culpa in Contrahendo. They are three-prerequisite theory and five-prerequisite theory, however, four-prerequisite theory is more appropriate. It can reflect essential character of Culpa in Contrahendo better. That is: party of contracting breaks the liability in pre-contract; relative person of contracting suffers damages; one side that breaks the liabilities in pre-contract has fault in mind ; there is causality between fault and damages. It is most important to understand the meaning of liabilities in pre-contract correctly. Liabilities in pre-contract refer to the incidental liabilities that two parties of two sides in a contract should be undertaken before a contract goes into effect. The concept includes the extent of occurrence and existence of pre-contract. With further development of reform and opening policy in our country, commercial economy has been developed extremely fast, commodity exchange and civil communication between civil subjects have become more frequent, yet its main way goes on by signing all kinds of contracts so it appears more important that we should deal with various problems that are likely to come about in the stage of signing a contract in a correct way , explicit liability undertaking and try to build a good motion environment in order to establish efficient economic communication relationship between parties .For Culpa in Contrahendo, our country's General Rule For Civil Law of People's Republic of China(General Rule for short in the following) only partly includes some regulations for Culpa in Contrahendo in No.61 Item, however, it has no definite regul...