Contracting Negligence Theory

Since Rudolph von Jhering, a German legal scholar, put forward the theory of liability for culpa in contrabendo in 1861, the pre-contract duty turned into the duty in law, and the reliance interest began to be protected effectively. In many countries, the liability for culpa in contrabendo system has been applied through legislation and/or case decision. The application of good faith principle extends to the pre-contracting stage. After the development over a hundred years, the theory of liability for culpa in contrabendo has been perfected to a great extent, on which together with other systems, such as tort liability, liability for breach of contract, constituting a complete system of debt law. It is relatively late to introduce the theory of liability for culpa in contrabendo into our country. A generally accepted recognition is that the liability for culpa in contrabendo began to be confirmed in law formally after the promulgation of Contract Law. Currently, there are still many problems as to the the liability for culpa in contrabendo in Contract Law of our country. For instance, the stipulation is not perfect; there does not exist a complete system; the feasibility is weak; and there are many difficulties in judicial practice. There are many theoretical arguments about the basic issues on the liability for culpa in contrabendo, requiring scholar to further research in depth.This thesis starts from the origin and development of the theory of the liability for culpa in contrabendo, summarizes the domestic and foreign research fruits on the theory, and discuss comprehensively on the nature, jurisprudential foundation, elements, scope of application, scope of compensation of the liability for culpa in contrabendo, and its comparison with other liabilities. Based the comprehension and summary of the system of liability for culpa in contrabendo in our country, the author provides some suggestions on the legislation of liability for culpa in contrabendo.