The Study On The Liability Of Breaking Off Negotiation

The traditional contract law theory holds that the contract concludes when one party makes an offer and the other accept. However, in contemporary society, the transaction can not be complete immediately. On the contrary, the conclusion of the contract negotiations are often a long and constantly changing, and even repeatedly process. It determines that in the process the parties must have some essential costs. If the negotiations failed, whether one could advocate the costs become a rather difficult problem. According to the traditional Freedom of Contract Theory, "No Contract Means No Obligation," the parties shall bear all kinds of risk during the negotiation. However, the rule is unfair to the party who suffer the loss. In order to protect the party, the German Law established"Culpa in Contrahendo" and China's "Contract Law" also introduced this legislation. Article 40 of "Contract Law" only provides three cases:negotiating contrary to good faith, providing the false information and hiding the important information. While it does not involve the general liability of break off the negotiation, as its constituent elements and the scope of liability is still a question. And the theory and doctrine almost have not discussed the issue. It is contrary to the reality of using the letters of intent to fix trading opportunities between businessmen. Therefore, the paper use the comparative method, empirical method to make a system analysis the issue and build some effective rules. And then reasonably allocate the risk between the parties to achieve the justice.This article is composed of five parts:The first part discusses the realistic basis of broken off negotiation liability, and indicates that in modern society, the traditional offer and acceptance law system can not meet the complex realities. It should be a dynamic perspective on the process of contract conclusion, and accordingly it advocates that a complete and effective legal mechanism should be established to achieve a balance of interests.The second part discusses the legal basis of broken off negotiation liability, and indicates that the reliance interests protection is its purpose, and the essence of the liability is protecting "the tempted reliance". Meanwhile, it distinguishes the reliance protection, the precontractual liability and the principle of good faith. And it also advocates why the latter is not appropriate as a theory basis of the liability. The third part examines the civil law, common law and legislation of the European Union, and analyses the major countries'legislative attitude, constituent elements and the scope of liability in order to provide some suggestions for Chinese law.The fourth part retrieves the current legislation of our country involved the broken off negotiation, and proposes that it should combine contract certainty, Culpa in Contrahendo, tort and unjust enrichment to regulate the issue.The fifth part reviews relevant rules in our contract law,and according to the legal theory supposes the constituent elements as following:one party's attempted behavior, the other party rely on the behavior and bring reasonable reliance,and the former one breaking off the negotiation without good reasons. It also advocates that the scope of the liability should be controlled as reliance interests.