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Culpa in contrahendo is aLatin expression meaning "fault in conclusion of a contract". It is an important concept incontract law for manycivil 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 byRudolf von Jhering. InGerman contract law, § 311 IIBGB lists a number of steps by which an obligation to pay damages may be created.
By contrast, inEnglish contract law, and many other common law jurisdictions, there has been stunted judicial acceptance of this concept. The doctrine ofestoppel has been mooted by academics as a good model, but judges have refused to let it be a sidestep of the doctrine ofconsideration, 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 theUnited States, however, courts have allowedpromissory 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 firstRestatement of Contracts.
Rudolf von Jhering is credited with developing the doctrine ofculpa in contrahendo in a 1861 article.[2][3][4] While there already existed a norm in the 1791General 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 theculpa 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).
Article 1382 of the Belgian Civil Code is the general legal basis to pursue compensation for damage as a result of aculpa 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"
The doctrine of culpa in contrahendo applies in the US territory ofPuerto Rico.[6] It sometimes is cited inLouisiana.[7]
"The doctrine ofculpa in contrahendo goes back to a famous article by Jhering, published in 1861."
"C.i.c. was first established by Rudolf von Jhering (1861)…"
„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."
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