Precontractual Liability in the Rome II Regulation

27 Pages Posted: 30 Mar 2009

Date Written: October 24, 2008


Article 12 of the Rome II Regulation governs the non-contractual obligations arising out of dealings prior to the conclusion of a contract and establishes that the law applicable to these obligations shall be the law that applies to the contract. Where it is not possible to determine such law, the second paragraph of article 12 specifies the general connecting factors of Rome II Regulation. Moreover, it is possible to choose the law applicable in culpa in contrahendo issues. These solutions are nonetheless not problem-free. It seems not quite appropriate that the law applicable to a future contract may govern the specific obligation not to breach negotiations from a given point in time and that parties cannot rely on the law of the country in which any of them have their habitual residence in order to uphold the possibility of breaching negotiations without being held liable. It is neither appropriate that the law applicable to a future contract might govern the liability arising from negotiations which take place in the setting of a concluded agreement.

This article explores those problems as well as the difficulties posed by the demarcation between contractual and non-contractual liability in culpa in contrahendo cases, and advocates alternative regulatory proposals.

Note: Dwonloadable document is in Spanish.

Keywords: Culpa in contrahendo, Contractual Obligations, Non-Contractual Obligations, Rome I Regulation, Rome II Regulation

Suggested Citation

Arenas García, Rafael, Precontractual Liability in the Rome II Regulation (October 24, 2008). InDret, Vol. 4, 2008, Available at SSRN:

Rafael Arenas García (Contact Author)

affiliation not provided to SSRN ( email )

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