Culpa in contrahendo
Encyclopedia
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 recognise 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 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. 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.
Culpa in Contrahendo in German Law
Rudolf von Jhering is credited with the discovery of the culpa in contrahendo doctrine. Originally, according to the prevailing interpretation of the Bürgerliches Gesetzbuch or German Civil Code, there was no equivalent legal doctrine. The courts saw a gap in the legal system of the Civil Code, and filled it with the development of culpa in contrahendo.
Since the modernisation of the Law of Obligations in 2001, the legal doctrine is provided for by statute. (§311(2) in connection with §§280(1) and 241(2) of the Civil Code)
Latin
Latin is an Italic language originally spoken in Latium and Ancient Rome. It, along with most European languages, is a descendant of the ancient Proto-Indo-European language. Although it is considered a dead language, a number of scholars and members of the Christian clergy speak it fluently, and...
expression meaning "fault in conclusion of a contract". It is an important concept in contract law for many civil law countries, which recognise 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
German contract law
German contract law is found in the Bürgerliches Gesetzbuch, in both the "Allgemeine Teil" and the chapter on "Schuldrecht". It forms part of the general law of obligations....
, §311 BGB lists a number of steps by which an obligation to pay damages may be created.
By contrast, in English contract law
English contract law
English contract law is a body of law regulating contracts in England and Wales. With its roots in the lex mercatoria and the activism of the judiciary during the industrial revolution, it shares a heritage with countries across the Commonwealth , and the United States...
, and many other common law jurisdictions, there has been stulted judicial acceptance of this concept. The doctrine of estoppel
Estoppel
Estoppel in its broadest sense is a legal term referring to a series of legal and equitable doctrines that preclude "a person from denying or asserting anything to the contrary of that which has, in contemplation of law, been established as the truth, either by the acts of judicial or legislative...
has been mooted by academics as a good model, but judges have refused to let it be a sidestep of the doctrine of consideration
Consideration
Consideration is the central concept in the common law of contracts and is required, in most cases, for a contract to be enforceable. Consideration is the price one pays for another's promise. It can take a number of forms: money, property, a promise, the doing of an act, or even refraining from...
, saying estoppel must be a shield not a sword, and calling instead for Parliamentary intervention. On the other hand in the case of land, proprietary estoppel
Proprietary estoppel
Proprietary estoppel is a legal claim, which may arise in relation to rights to use the land of the owner, and may even be effective in connection with disputed transfers of ownership.-Outline:Proprietary estoppel can be broken into a number of steps...
effectively created obligations regardless of any pre-existing contract. In the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
, 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.
Culpa in Contrahendo in German Law
Rudolf von Jhering is credited with the discovery of the culpa in contrahendo doctrine. Originally, according to the prevailing interpretation of the Bürgerliches Gesetzbuch or German Civil Code, there was no equivalent legal doctrine. The courts saw a gap in the legal system of the Civil Code, and filled it with the development of culpa in contrahendo.
Since the modernisation of the Law of Obligations in 2001, the legal doctrine is provided for by statute. (§311(2) in connection with §§280(1) and 241(2) of the Civil Code)
See also
- Walton Stores Ltd v Maher
- Friedrich KesslerFriedrich KesslerFriedrich Kessler was an American law professor who taught at Yale Law School , University of Chicago Law School, and University of California, Berkeley School of Law. He was a contract law scholar, but also wrote of trade regulation law...
and Edith Fine, Culpa in Contrahendo, Bargaining in Good Faith, and Freedom of Contract: A Comparative Study, 77 Harv. L. Rev. 401 (1964).