On The Liability For Fault

The principle of fault in negotiating originated from the Roman Law, which set a basis for the development and perfection of the theory. It was Jhering that established the theory of fault in negotiating. Jhering's theory had great influence to German law-making and judicial precedent and gave impetus to the law-making of countries belonging to the Continental Law System. The concept of fault in negotiating doesn't exist in the common law countries, and reliance interests are protected by the principle of promissory estoppel. The responsibility of fault in negotiating was stipulated in the international uniform law, as well as the Contract Law of P.R. China.The responsibility refers to the compensation one party should make to the counter party when he breaches the pre-contract obligations and causes damage to the counter party in the course of concluding a contract.The responsibility of fault in negotiating is an independent form of liability in the Contract Law, which, together with other liability forms, constitutes a whole liability system of civil law.The composing of the responsibility of fault in negotiating includes four parts: one party breaches the forgoing obligations; the breaching of obligations is caused by one party's fault; the breaching results in the counter party's losses; the causational relation between one party's breaching of obligation and the counter party's losses.The taking of the responsibility doesn't begin with one party's valid offer, it should be judged by one party's breaching of the forgoing obligations, in other words, one party should take the responsibility while he breaches the obligations no matter the offer is valid or not. The ending point of the responsibility should be the time of formation of a contract. If the fault happens between formation of a contract and effectiveness of a contract, it should be considered as responsibility of fault in effectiveness.The scope of application includes: non-formation of the contract; invalidity of the contract; cancellation of the contract; the contract being formed but not coming into effect; the contract formed and coming into effect.The compensation covers two parts: the reliance interests and the erhaltungsinteresse.The standard of compensation depends on different situations. When one's fault leads to the loss of the erhaltungsinteresse, it should be the real loss principle; when the fault leads to the reliance interests' loss, the standard should be positive interest, that is, the interest one can gain on condition that the contract is abided strictly. The way of the taking of the responsibility of fault in negotiating is damage compensation.There are three principles which should be abided by when the principle of fault in negotiating is applied: contributory negligence; compensatio lucri cum damno Vorteilsausgleichung; rights for sufferer to choose when coincidence of liabilities.