Hans Edlund, ‘Culpa in Contrahendo: Tortious Liability, Breach of Contract or an Autonomous Legal Instrument?’

ABSTRACT
The legal character of contract negotiations is much debated and different answers are given to the question whether disloyal behaviour committed during unsuccessful contract negotiations can be met by contractual or tort law remedies or, as a third possibility, some unique sanctions developed for this certain semi-contractual situation only. In this article, it is argued that an agreement to negotiate a contract is a contract in itself, although a very non-binding one – a pre-contract. Subsequently, breach of the parties´ duties relating to the pre-contract might be sanctioned by using contractual remedies. Most of the usual remedies, however, are not relevant, except for damages. These may be measured according to the principles on expectation interest, but in this specific situation the outcome will be almost identical with damages that are calculated according to the reliance interest. It is of course not possible to claim damages related to the contract that could have been the result if the contract negotiations had been successful.

Hans Henrik Edlund, Culpa in Contrahendo: Tortious Liability, Breach of Contract or an Autonomous Legal Instrument? (2019) 30 European Business Law Review, issue 5, pp 815–822.

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