Study On Culpa In Contrahendo

Culpa in contrahendo refers to the liability of one of the contracting parties for the damage of the interests of other parties due to its breach of the contracted duties. Since the initiation of the liability of the contracting party, it has been developed into an integrated theoretic system after the perfection of the doctrine of precedents. It is juxtaposed with liability of the breach of contract and that of tort. Since the legislation of the Contract Law of the PRC in 1999, researchers have dwelled much on the system of the liability of negligence. Efforts have been made in this paper to elaborate on the basic features, components, range of application and compensation of the liability of negligence. Defects and shortcoming in our legislation and jurisdiction have been pointed out and the structure of this paper is as follows:Chapter one of this paper is about the historical origin and theoretic foundation of the liability of negligence. This liability initiated from Roman Law but it was not systematic at that time. The theory started from the publication of a paper by Jhering. After his elaboration on the theory of the liability of negligence, it become a system of liability and is perfected gradually by the case law system. The continental system established this system and it often has its influence in common law system as well as international legislation. In the process of the development of this theory, scholars argued much on the jurisprudential foundation of it and consequently many doctrines have been developed, namely the doctrine of tort, the doctrine of legal action, the doctrine of legal rulings, and the doctrine of good faith. The last doctrine now becomes universally accepted.Chapter two of this paper focuses on the definition of the liability of negligence. The concept of this term is first clarified. It refers to the liability of one of the contracting parties for the damage of the interests of other parties due to its breach of the contracted duties. The components of this liability include the breach of duties on one party, the loss of the other parties, the causational relation between the negligence of one party and the damage of the others. Last, via comparison between liability of the breach of duties and that of tort, it is pointed out that there are many differences between them and they can not be substituted by each other. The liability of negligence is an independent one and it constitute the liability system of civil law with other two kinds of liabilities.Chapter three of this paper discusses the range of the application of this liability. Several common situations in which this liability is use are exacted, and they include the failure of the fulfillment of the duty of protection, that of informing, leak of information, malicious concealment and others. The range of the application of this liability is also discussed, and it include interests of faith and inherent interests. The interests of faith include positive and negative ones. Chapter four of this paper concentrates on the perfection of the liability of negligence in China. The state of affairs of the legislation and jurisdiction of the liability of negligence are first discussed, and the defects are duly pointed out. It manifests itself in the fact that there is no rule about the duty prior to the contract and the range of damages is not specified. The independence of the liability of negligence is not emphasized and there are still some technical problems and difficulties concerning the legislation techniques. In judicial application, the range of the application of this system is not clearly grasped. Suggestions of the perfection of the liability are presented as follows. In terms of legislation, the form of liability of the negligent contractor should be specified, and the duties prior to the contract should be specified beforehand. In terms of judicature, the liability of negligence should be perfected by judicial interpretation and precedent cases.A conclusion is conducted at the end of this paper. The system of the liability of negligence initiated from the Roman Law and was developed by Jhering. After the gradual perfection of more than one century, it has been developed into an integrated system of theory. Its theoretical foundation is the principle of good faith. That is, if several parties start to negotiate and talk, parties should follow the principle of good faith and trust to take care of the interests of relevant parties and should this not be followed and damage was resulted in, the contracting party should pay for it. The system of the liability of negligence makes up the shortcomings of the legal adjustment from offer to the laying down of the contract. It protects the safety of transactions better. As a system juxtaposed with that of the liability of breach of contract and that of tort, it is acknowledged by many countries and is gradually codified. In the year 1999, the Contract Law of the PRC adopts the idea of the liability of negligence and the relevant system is primarily constructed. General rules are laid down and common liabilities are pointed out and clearly stipulated. While on the other hand, many difficulties occur and we should perfect this system via legislation as well as jurisdiction. In terms of legislation, we should pay attention to the independent right form of the liability of negligence and the pining down of duties prior to the contract. In terms of jurisdiction, this liability should be perfected by judicial interpretation and case law. Therefore, we should perfect this system by both legislation and jurisdiction with a view to the fulfillment of its function in the protection of the safety of transaction and trade and the smooth and effective running of economy.