Contracting Negligence Study

Culpa in Contrahendo is an important legal institution in the contract law of Civil Law System. In this thesis, by way of comparative, historical, logical, and systemic study, and from the perspective of the origin and evolution of Culpa in Contrahendo, the author discusses the concept, the character, the theoretical basis, the constitutive requirements, the scope of application and the legal results, etc. of Culpa in Contrahendo comprehensively and thoroughly. On the base of this analysis, the author analyses the present legislative situation of Culpa in Contrahendo in Chinese law, points out its defects, and makes some suggestions on how to perfect it, with the hope that it can be some enlightening and helpful to our legislative practice and judicial affairs.This thesis is composed of seven chapters besides the introduction and the conclusion. The whole thesis is over 60 thousand words.The introduction directly points out the main issues that are to be discussed in the thesis. Meanwhile, the practical value and theoretical significance of this thesis are also pointed out here.Chapter One is focused on the origin and evolution of Culpa in Contrahendo. In this chapter, taking the historical development as the main thread, the author first introduces the rudiment of Culpa in Contrahendo in Roman law and Rudolf Von. Jehring's "great discovery in the science of law". Then taking space and regions as standard, the author presents to the readers the establishment and development of Culpa in Contrahendo in countries and areas of Civil Law System, how Common Law System deals with it and also the relevant regulations in the international uniform Commercial law.Chapter Two is concerning the concept and legal character of Culpa in Contrahendo. The author compares various points of viewon the concept, analyses the advantages and disadvantages, merits and demerits of each view, points out the crux to grasp the concept, and expounds the scientific definition of Culpa in Contrahendo. In the meantime, the author elaborates the legal characters of Culpa in Contrahendo in a comprehensive and systematic way.Chapter Three is with regard to the theoretical basis and status of Culpa in Contrahendo. First of all, the author analyses the theories of tort, legal action, legal provision and bona fide doctrine, approves that the theoretical basis of Culpa in Contrahendo is bona fide doctrine. Then, the author points out the similarities and differences between liabilities for Culpa in Contrahendo and those for breach of contract and for tort. Finally, the author concludes that liabilities for Culpa in Contrahendo is an independent type of civil liabilities, and Culpa in Contrahendo is an independent cause of creation of obligation. Any behaviour that equates Culpa in Contrahendo with other type of civil liabilities is wrong.Chapter Four is concerned with the constitutive requirements of Culpa in Contrahendo. The author compares and distinguishes different constitutive requirements proposed by scholars, points out their defects, and then from the angle of integrating subjectivity with objectivity, demonstrates the constitutive requirements scientifically and reasonably.Chapter Five is about the scope of application of Culpa in Contrahendo. In this part, the author proposes six criterions of classification and makes clear the mess caused by scholars when they summarize the scope of Culpa in Contrahendo. On the base of approving three admittedly accepted types of Culpa in Contrahendo with which the contract is unreached, void, or cancelled, the author discusses with bold courage other types of Culpa in Contrahendo when the contract is reached, modified, dissolved, or valid. In addition, some specific questions are also discussed here. The author trieshis best to construct a complete theoretical frame for the application of Culpa in Contrahendo.Chapter Six is about the legal results of Culpa in Contrahendo. Comparing and analyzing from various angles, the author points out that there is only one way of bearing the liabilities for Culpa in Contrahendo, i.e. compensation for damages. Furthermore, the author analyses the subjects, the range, the limit and the principle of compensation, as well as some other questions like coincidence of liabilities.Chapter Seven is about the present legislative situation and perfecting of Culpa in Contrahendo in Chinese law. The author makes a comment on the present legislative situation of Culpa in Contrahendo in China, analyses its defects, and makes some suggestions on how to perfect it.The conclusion generalizes the main contents of this thesis and sums up the author's chief viewpoints.