Research On The Nature And Application Of Culpa In Contrahendo

It has been150years since Jhering established the Theory of culpa in contrahendo.During this period, this theory has flourished and profoundly impacted countries anddistricts of civil law system. Furthermore, it has actively promoted the development ofrelative systems of the common law system. Determination the nature and applicationare the two relatively significant aspects of culpa in contrahendo system. However,countries and districts which introduce the theory or the system still haven’t reached acommitment on these two questions. This thesis aims at probing into the nature andapplication of culpa in contrahendo in present civil system of China, throughrecognising the cognition of civil law countries and common law countries towards itas well as their distinguished reasons.In terms of the nature of culpa in contrahendo, there exists three categories oftheory in history, including Theory of Contractual Liability, Theory of TortiousLiability and Theory of Independent Liability. At present, in Germany and Taiwan,pursuant to their civil law and the universal viewpoint in theoretical field, culpa incontrahendo serves to be a type of independent liability other than Theory ofContractual Liability and Theory of Tortious Liability. It is because the tort law inGermany and Taiwan contains legislative obstructions involving the range of objectprotected by the general clause of tort, the exemption of employer’s liability,limitation of legal proceedings and etc, which contributes to the failure of protection of contracting parties’ benefit at the contracting phase; Besides, another crucial reasonis that academics have its distinctive recognition on the pre-contractual obligation.Both France and Switzerland have accepted Culpa in contrahendo and neverthelessfail to bring in the theory. Instead, they utilize torts law to resolve the issue ofviolation to a party’s benefit. Greece, Portugal and Austria categorize ContractingFault Liability into the scope of Contractual Liability. The universal standpoint inItaly is Culpa in Contrahendo pertains to Torts Liability. The focus of the argument onthe property of Culpa in Contrahendo in China’s academic and judicial practice servesto be whether Theory of Independent Liability or Theory of Tortious Liability shall beadopted. Pursuant to related provisions in Tort Liability Law of China,” its generaltort terms generally protect rights, legal interests and pure economic interests. Besides,employer cannot exempt through proving his non-fault and the limitation ofproceeding of tort suit doesn’t ditinguish with others’. Therefore, it does not containabovementioned disadvantages roots in the torts law of Germany and Taiwan, and thepre-contractual obligation and the alleged general duty of care tend to be identicallyoriginated and possess the same property. Accordingly, in China, Contracting FaultLiability shall be positioned as a type of tortious liability, and it merely conceptuallyexists in civil law theories.In terms of the application of Culpa in contrahendo, legislation, theory and judicialpratice of respective countries and districts put forward corresponding range ofapplication. Some of these types, however, could be solved by other approches. Mereliability of breaking-off negotiation, avoidance of contract,canceling contract andunauthorized agency drop in the scope of culpa in contrahendo. Among these,breaking-off negotiation, of which the judgement of whether the doer is against hispre-contratual obligation is extremely crucial, can be solved by tort law. The liabilityfor compensation, caused by cancellation of declaration of mistaken w ill can alsoutilize tort liability, no matter in fault-liability model or non-fault liability model. Interm of liability of unauthorized agency, whether the actor is faulty or unfaulty, thespectrum of his liability should be limited in reliance damage. Meanwhile, this kind ofliability, no matter being a statutory guarantee liability or statutory liability, should be more rational to applicate tort law.