Global InformationCulpa in contrahendo information
| Contract law |
|---|
 |
| Formation |
|
| Defences |
|
| Interpretation |
|
| Dispute resolution |
|
| Rights of third parties |
|
| Breach of contract |
|
| Remedies |
|
| Quasi-contractual obligations |
|
| Duties of parties |
|
| Related areas of law |
|
| By jurisdiction |
|
| Other law areas |
|
| Notes |
|
Culpa in contrahendo is a Latin expression meaning "fault in conclusion of a contract". It is an important concept in contract law for many civil law countries, which recognize a clear duty to negotiate with care, and not to lead a negotiating partner to act to his detriment before a firm contract is concluded. In German contract law, § 311 II BGB lists a number of steps by which an obligation to pay damages may be created.
By contrast, in English contract law, and many other common law jurisdictions, there has been stulted judicial acceptance of this concept. The doctrine of estoppel has been mooted by academics as a good model, but judges have refused to let it be a sidestep of the doctrine of consideration, saying estoppel must be a shield not a sword, and calling instead for Parliamentary intervention.[1] On the other hand, in the case of land, proprietary estoppel effectively created obligations regardless of any pre-existing contract. In the United States, however, courts have allowed promissory estoppel to function as a substitute for the consideration doctrine. This movement was stimulated by the acceptance of the concept in section 90 of the first Restatement of Contracts.
- ^ The English and Scottish Law Commissions invited Harvey McGregor to draw up a "Contract Code" (being a codification and fusion of English and Scots contract law), but neither country has adopted his 1993 recommendations.