A comparative study of the theory of precontractual responsibility

Abstract

Jhering may rightly be regarded as the founder of the theory under discussion for he it was who suggested that if for some reason or another a contract is not concluded, then the question would arise as to whether one of the parties was to blame for this during the negotiations and therefore liable to pay an indemnity to the other party. The basis of his thesis is the tacit preliminary agreement of mutual responsibility which is intimately connected with the future contract. Such a general theory was based on certain passages in the Digest relating to sale which is null ab initio, and was later extended to cases where contracts were frustrated owing to the unjustified falling out of one of the parties. In spite of the fact that Jhering's theory of culpa in contrahendo is based on culpa, several writers point out that the passages from the Digest which he actually quoted, refer to 'bad faith'. In reality 'bad faith' lies somewhere between malice and negligence and it provided for the successful action of a plaintiff who, though unable to prove dolus on the part of the defendant, brought evidence to show that objectively the defendant was in bad faith.