Precontractual Liability in European Private Law: Conclusions
Faculty of Law, University of Leiden; Faculty of Law, University of Oxford; Christ Church
Martijn W. Hesselink
University of Amsterdam - Centre for the Study of European Contract Law (CSECL)
November 28, 2008
Conclusions, in: PRECONTRACTUAL LIABILITY IN EUROPEAN PRIVATE LAW, John Cartwright, Martijn Hesselink, eds., pp. 449-488, Cambridge University Press, 2008
This is our concluding chapter for the forthcoming book Precontractual Liability in European Private Law. A number of lessons can be learnt from our comparative study. They are set out in these Conclusions. With regard to the difference between the common law and the civil law we emphasise that any general conclusions cannot be based on a limited and specific study like the present one. However, with regard to the cases under consideration in the present project it seems fair to say that we have detected a fundamental difference in approach between the countries which are usually considered to be part of the civil law tradition and those which are said to be part of the common law. Unlike English, Irish and Scots law all the other systems contain some general doctrine of precontractual liability, usually based on good faith. English, Irish and Scots law were the systems that most often offered no remedy and never were they the system that provided the most extensive liability. There was therefore both a doctrinal difference between the 'common law' systems and the 'civil law' systems and a corresponding difference in the outcome of cases. England, Scotland and Ireland not only rejected the general duty between negotiating parties to take each other's interests into account but even characterised the period of negotiations as being one in which the parties should generally have no such duty-and this was then translated into a significantly more limited range of liabilities between negotiating parties where the negotiations failed to result in a concluded contract. However, having said that we also saw, when it comes to the details of the remedies available and the facts which actually trigger the remedies, that both the differences between common law and civil law and the similarities within the civil law turned out to be much less important than they seemed to be at first sight. Nevertheless, it would go too far to conclude, with regard to the subject of precontractual liability, that the factual approach has uncovered underlying pervasive substantive unity (a 'common core') which was disguised by merely conceptual differences.
Number of Pages in PDF File: 32
Keywords: Pre-contractual liability, Negotiations, Contract, Tort, European private law, Legal originsAccepted Paper Series
Date posted: December 5, 2008 ; Last revised: April 8, 2011
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