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. It was coined in the 1861 by Rudolf von Jhering. 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 stunted 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.
German law
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Rudolf von Jhering is credited with developing the doctrine of culpa in contrahendo in a 1861 article.[2][3][4] While there already existed a norm in the 1791 General State Laws for the Prussian States that made the same liability standard that applies to faulty performance also apply if, at the time of concluding the contract, one party neglects their pre-contractual duties. This norm was not taken notice of in the scientific literature.[5] Originally, according to the prevailing interpretation of the German Civil Code, there was no such legal doctrine. The courts saw a gap in the law and used the culpa in contrahendo doctrine to fill it.
Since the 2002 reform of the law of obligations, culpa in contrahendo is provided for by statute §311(2) in connection with §§280(1) and 241(2) of the German Civil Code).
Belgian law
editArticle 1382 of the Belgian Civil Code is the general legal basis to pursue compensation for damage as a result of a culpa in contrahendo. Article 5.17 of the new Belgian Civil Code juncto Art 6.5 of the same Code are dispositions that explain the " culpa in contrahendo"
United States
editThe doctrine of culpa in contrahendo applies in the US territory of Puerto Rico.[6] It sometimes is cited in Louisiana.[7]
See also
edit- Waltons Stores Ltd v Maher
- Friedrich Kessler and Edith Fine, Culpa in Contrahendo, Bargaining in Good Faith, and Freedom of Contract: A Comparative Study, 77 Harv. L. Rev. 401 (1964).
References
edit- ^ 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.
- ^ Kessler, Friedrich; Fine, Edith (1964). "Culpa in Contrahendo, Bargaining in Good Faith, and Freedom of Contract: A Comparative Study" (PDF). Harvard Law Review. 77 (3): 401–449. doi:10.2307/1339028. JSTOR 1339028.
"The doctrine of culpa in contrahendo goes back to a famous article by Jhering, published in 1861."
- ^ "Culpa in Contrahendo". Max Planck Encyclopedia of European Private Law. Oxford University Press. 2012.
"C.i.c. was first established by Rudolf von Jhering (1861)…"
- ^ Jhering, Rudolf von (1861). "Culpa in contrahendo oder Schadensersatz bei nichtigen oder nicht zur Perfection gelangten Verträgen" [Fault in contracting or damages for void or unperfected contracts]. Jahrbücher für die Dogmatik des heutigen römischen und deutschen Privatrechts (in German). 4: 1–112.
- ^ Arndt, Björn (2015). Die Schadensersatzpflicht des Fremdbesitzers im Exzess (Dissertation) (in German). Universität (DNB-Nachweis). pp. 52–53.
„Zwar enthielt bereits das allgemeine preußische Landrecht von 1794 eine Regelung … (ALR I 5 § 284): 'Was …' Jedoch hat diese Norm … in der unmittelbaren Folge wenig Beachtung gefunden."
{{cite thesis}}: CS1 maint: url-status (link) - ^ "Private prisons, Pyrrhic victories, and a single-family hotel". August 15, 2025.
- ^ Morris v. Friedman, 663 So. 2d 19 (La. 1995-11-27) (""we can find only a few Louisiana decisions which even mention these doctrines, and only one case which specifically based recovery exclusively on either theory. [...] We have not located any case or commentary even addressing the application of either doctrine to an onerous promise where a positive legal requirement of form exists."").
- Rudolf von Jhering, “Culpa in contrahendo oder Schadensersatz bei nichtigen oder nicht zur Perfection gelangten Verträgen”, Jahrbüchern für die Dogmatik des heutigen römischen und deutschen Privatrechts, vol. 4, 1861, pp. 1–3; reprinted in Rudolf von Jhering, Gesammelte Aufsätze (1881). Jhering argued that the "reliance measure" ought to be the proper one in "not quite" contracts, e.g. where there is a misunderstanding as to the terms of the contract.