Culpa in contrahendo : a comparative perspective

Abstract

Regulation 864/2007 of the European Parliament and of the Council on the law applicable to non-contractual obligations, better known as the Rome II Regulation sets out that the notion Culpa in Contrahendo should be given an autonomous interpretation. The subject of liability that arises during the negotiating period has attracted a multitude of opinions among the Member States of the European Union. The positions shared by Member States vary widely, these include legal systems, like the French and the Italian, that are ready to acknowledge and reward damages in cases of pre-contractual litigation where a contract has not been signed, to more restrictive legal systems, like the English, which emphasise that the negotiating period should be a risk period exempt from any liability. Moreover, there are even legal systems, like the Maltese, which are still undecided on the matter. The thesis, hence, aims to explore the notion of liability during negotiations taking into consideration, the mentioned four legal systems in a comparative analysis. The final aim is to arrive at a possible definition as to how the notion can be interpreted without prejudicing the aspect of any of the legal systems in question, or to find the solution which would cause least prejudice in this regard. In doing so, the thesis will broadly define the approach of each legal system and the delve into the salient features of each approach in an attempt to see whether it results in practice under any of the other legal systems. The methodology used, thus, is to go from the very general to the specific in each case, whereby the theoretical concept is defined and then a study of actual cases is carried out, in order to outline the practical approach.