Contracting Negligence Study

Market economy is essentially a credit economy. Without credit, trade cannot run. Briefly speaking, the so-called credit is trust. No trust, no trade and market. Trust is of great significance for the growth of social fortunes is dependent on the frequent occurrence of trades. Then how to safeguard credit? Among various solutions, legal system is the most important one. In civil law the culpa in contrahendo is established to promote trades. According to the traditional principle of freedom of contract, the parties can decide whether to contract or not. The parties can terminate the negotiation and escape any liability so long as the contract is not fixed. The idea may spur the parties' orexis ,affect the safety of trade and impair social interest though it may be helpful to maitain the freedom of contract. The culpa in contrahendo is tailored to fill this gap. It can protect the reliance interest of the other party and encourage the parties to contract in good faith. Here the reliance interest means the physical damages caused by one party to the other party for breach of good faith. The aim of protecting reliance interest is to put the innocent party in as good a position as he was in before the contract was made. In the contract law of our country Culpa in contrahendo is set to solve the problems mentioned above. However, the system reflects the hardship between freedom of contract and good faith. And in theory the opinions of scholars are ambiguous in the system's concept ,nature, components, theoretical foundation and damages. The role of this thesis is to clarify these problems and make some suggestions for the system's optimization. Besides the analysis of its theoretical foundation, the thesis put priority on the system's components and effects. Finally the author points out that the optimization of the system can only be finished through the common efforts of legislators, scholars and law-executives.The thesis is divided into seven sections.Introduction. This section outlines the research status on culpa in contrahendoacross the world and stresses the aim and value of this thesis. On one side, the study of culpa in contrahendo is helpful to the optimization of debt law in the civil code and the protection of reliance interest. On the other side, the system's setup is helpful to establish the credit system and protect the interest of innocent party. Without this system, it is hard to erect protection mechanism of reliance interest. And the interest of the innocent party will lose legal protections.The first section discusses and confines the system's concept, connotation and extention in theory. The author holds that both the contents of liability and protection domain should be emphasized in culpa in contrahendo. Culpa in contrahendo is taken as an independent liability of the party who acts against good faith to the the innocent party who has acted upon reliance in entering into the contract. The duty occurs in the process of negotiation for the breach of good faith by the guilty party. The good faith duty includes representation duty Royalty duty and assistance duty. And the author provides that culpa in contrahendo should be generalized as the theory grows mature.The second section confines the nature of culpa in contrahendo, introduces the legislations of some countries and provides the legislation model that our country should follow. After discussion of the system's history and growth, the author points out that culpa in contrahendo was innitially made to protect reliance interest.Only because of the inherent defects of clause 823.1 of German Tort Law, the German courts enlarged the protection domain of culpa in contrahendo to fill this gap. Since the tort law of our country is free of the defects in German law the protection domain of culpa in contrahendo is only confined to reliance interest in China. The author holds that culpa in contrahendo is neither a debt of contract for the lack of consensus nor a debt of tort for the parties have reliances to each other. In one word, culpa in con...