Study On Culpa In Contrahendo

The theory of culpa in contrahendo is originated from the civil litigation of Roman law. It was first posed by Jhering, a famous German jurist in 1861 when he published an article,"culpa in contrahendo oder Schadensersatz bei nichtigen oder nicht zur Perfektion gelangten Vertr?gen". In this article, he thought that under the condition that the contract is untenable or invalid, the party at fault shall indemnify the other party for its loss sustained as a result. Thus it overthrew the non-contract theory of positive jurisprudence, and was honored as"a discovery in science of law". The proposition of the concept has a further effect on every country's legislation and judicial precedent. In our country the theory and legislation of culpa in contrahendo started very late. It was not until the promulgation of Contract law of People's Republic of China in 1999 that we established a complete system of it (set up a complete rule about it). However, the provision of the current law in culpa in contrahendo still has some defects, such as absence of stating the concept. So the system is not absolutely complete, which has caused no laws to abide by and laws to hardly abide by yet. Comparatively, theoretical research on the system fails to combine with positive research effectively. In view of the situation described above, this paper attempts to study culpa in contrahendo in the perspective of theory, legislation and judicature, in which the method of theoretical analyze was used and combined with empirical analyze.This paper is divided into 5 chapters totally.Chapter 1 is an elaboration on the general theories of culpa in contrahendo. Culpa in contrahendo occurs when the party violates the obligations of pre-contract subject to the principle of good faith in concluding a contract and thus causing losses to the other party, the party shall be liable while the other party shall be compensated for the damages suffered thereby.The second chapter delimits the intension of the concept, which means under what conditions culpa in contrahendo occurs. According to the general principle of civil liability and its characteristic, the liability contain the following constitutive requirements: a) the party shall have the appropriate capacities for civil acts; b) violating the obligation of pre-contract; c) the party is at fault when in concluding a contract; d) the other party has loss caused thereby; e) causality between the acts and the loss is required.The third chapter delimits the extension of the concept, which means the liability applies to what kind of conducts. If a party engaged in any of the following conducts, thereby causing loss to the other party, it shall be liable for damages: (â…°) negotiating in bad faith under the pretext of concluding a contract;(â…±) intentionally concealing a material fact relating to the conclusion of the contract or supplying false information;(â…²) disclosing or improperly using any trade secret which it became aware of in the course of negotiating a contract, regardless of whether a contract is formed; (â…³)any other conduct which violates the principle of good faith.The fourth chapter is the analysis of the legal consequence of culpa in contrahendo, which studied from the protecting object, compensation scope, liability shouldering, mixed fault one by one. 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.Through the mentioned four chapters, the author studies culpa in contrahendo mainly in theory, and several cases are cited as evidence of which. But research in theory and analysis of cases are not enough for us to build the legal system, law-making also plays an important role in that building. On the basis of analysis above, legal regulations on the liability are enumerated in the next chapter (chapter 5), form which we can see the development and blemish in legislation. To promote the system, the legislation should be perfected from the style and the content, which needs the efforts of academic circles together with judicial circles.