''Culpa in contrahendo'' is a

Latin Latin ( or ) is a classical language belonging to the Italic languages, Italic branch of the Indo-European languages. Latin was originally spoken by the Latins (Italic tribe), Latins in Latium (now known as Lazio), the lower Tiber area aroun ...

expression meaning "fault in conclusion of a contract". It is an important concept in

contract law A contract is an agreement that specifies certain legally enforceable rights and obligations pertaining to two or more Party (law), parties. A contract typically involves consent to transfer of goods, Service (economics), services, money, or pr ...

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 English contract law is the body of law that regulates legally binding agreements 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 ...

, and many other common law jurisdictions, there has been stulted judicial acceptance of this concept. The doctrine of

estoppel Estoppel is a judicial device whereby a court may prevent or "estop" a person from making assertions or from going back on their word. The person barred from doing so is said to be "estopped". Estoppel may prevent someone from bringing a particul ...

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 is a concept of English law, English common law and is a necessity for simple contracts but not for special contracts (contracts by deed). The concept has been adopted by other common law jurisdictions. It is commonly referred to a ...

, 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 The United States of America (USA), also known as the United States (U.S.) or America, is a country primarily located in North America. It is a federal republic of 50 U.S. state, states and a federal capital district, Washington, D.C. The 48 ...

, however, courts have allowed

promissory estoppel A promise is a commitment by someone to do or not do something. As a noun ''promise'' means a declaration assuring that one will or will not do something. As a verb it means to commit oneself by a promise to do or give. It can also mean a capacity ...

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

Rudolf von Jhering is credited with developing the ''culpa in contrahendo'' doctrine. 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

Article 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"

Puerto Rico

The doctrine of Culpa in contrahendo applies in Puerto Rico.https://ij.org/sc_newsletter/private-prisons-pyrrhic-victories-and-a-single-family-hotel/

References

*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. {{Authority control Contract law Latin legal terminology

German law

Belgian law

Puerto Rico

See also

References