On The Scope Of Compensation For Liability For Damage In Contracting Faults

Ever since Jhering introduced the system of culpa in contrahendo,it has been gradually accepted by countries with civil law system.In the legal frameworks of Germany and Taiwan,however,this system has yet another important function,that is,to make up for its limitation in Tort Law,which is different to our legislation.The absence of this function,therefore,leads to theoretical controversies on this matter,such as,whether it should be an independent liability.In addition,our theories concur that this system is expressed in Article 42,43 and 58 in Contract Law,all of which,however,absent the explanation of legal outcome as to relevant issues on damages.Controversies thus arise theoretically and practically.For example,whether damages scope should cover the loss of inherent interests,whether the loss of trading opportunities be included in the damages for reliance interests;and whether the amount of damages for culpa in contrahendo is subject to the upper limit of performance benefits,etc.The functionality of this system will surely be affected,should these issues not be clarified.This thesis emphasised this matter.The issues abovementioned were categorised and summarised,on the basis of theoretical and practical situation.And relevant issues concerning the damages scope were discussed,in order to contribute my efforts in solving this matter.Besides introduction and conclusion,this thesis was divided into three chapters.Comparison and analysis of different concepts of scholars on culpa in contrahendowere made and the author's stance asserted in the first chapter.And instead of being subject to tort liability,its independence was further clarified.Lastly,standard system and existing problems of our current legislation were generalised in connection with legislative status,to lay theoretical foundation for this thesis.The second chapter discussed the damages scope for culpa in contrahendo.On the basis of case study and legislative status and by reviewing different theories,this chapter aimed to solve two problem: 1.to clarify that the loss of inherent interests should not be covered in damages scope hereof,and 2.to clarify that the loss of trading opportunities objective and reasonable should be covered in the damages for the loss of reliance interests.The third chapter discussed the relationship between performance interests and damages for culpa in contrahendo.To begin with,the author elaborated and discussed the damages due to unfavourable conditions caused by the breach of pre-contractual obligations,and clarified that,under such circumstance,damages should be determined in accordance with the causation between contractual negligence and damage,and that apart from compensating reliance interests,damages for performance interests might take place.Then,the author discussed whether damages for reliance interests should be subject to the upper limit of performance interests,through reviewing cases of breaching different pre-contractual obligations.Upon analysis,this thesis pointed out that it's inappropriate to rigidly support or deny this matter.It should be taken into comprehensive consideration the injuring party's imputability and degree of fault,such as conducing negotiations with malice and infringing trade secrets to determine full damages.Where the imputability is weak and degree of fault minor,the damages should be subject to the upper limit of performance interests.