Contracting Fault Liability Study

The system of "Culpa In Contrahendo"liability formed and developed between classical contract law system and classical tort law system.Its appearance resolved the problem of how to protect the reliance interest effectively. Since German jurist Jhering put forward the theory of "Culpa In Contrahendo"in 1861, more than 140 years have passed, the theory is gradually accepted and adopted in the field of legislation and justice by many countries in the world, and it had made great progress: at first, it is just applied in the cases of the contracts which are not established, but now the scope of applying this theory is expanded to the cases involving the contracts which are void , voidable, or valid. At first it existed just in the judicial precedents, but now it is generalized and coded, and have become one independent and important civil legal system in many civil law system countries. Though has made great development, compared with liability for breach of contract and liability for tort and other legal systems, liability of Culpa In Contrahendo is very young, its theoretical foundation is simple, its content is numerous and jumbled, and its system is not very clear. In legislation. "Culpa In Contrahendo'Varied greatly in different countries, but as a whole, its terms are general, simple, and not very suitable for application. In conclution, the theory of "Culpa In Contrahendo"is not perfect ,should be improved both in theory and legal system.This paper first discusses the basic theory of "Culpa In Contrahendo" liability system. Then it will launch a comprehensive discussion and analysis on "Culpa In Contrahendo" liability system From four aspects which are the origin and historical evolution of "Culpa In Contrahendo", comments of this concept, theoretical foundation and fundamental characteristics of "Culpa In Contrahendo". On this basis, combined by sorting out the provisions and judicial practices of "Culpa In Contrahendo" in Germany, Switzerland, Taiwan, Greece, Italy, Japan, France, the Anglo-American legal system, International Commercial Law and mainland of China, this article will review and reconstruct the Elements of "Culpa In Contrahendo", point out the view of author's own, that is, "Culpa In Contrahendo" should include five elements : First, the parties violated the statutory obligations of attention, notice, stating that are based on the principle of Good Faith; Secondly, the breach of statutory obligations is the breach of precontractual obligations; Third, opposite side must have a loss; Fourth, breach of statutory obligations have the causal connection with the losses; Fifth, the one who breaches statutory obligations has the fault. Recognizing that "Culpa In Contrahendo" is an open system promoted by judicial practices, on the basis of reconstruction of its elements, this article divided "Culpa In Contrahendo" into four main types and 12 specific types, and strive to sketch the outline of the whole system. In the end, this article discusses the legal consequences of "Culpa In Contrahendo", including the form and the scope of this liability. The form of this liability is the compensation only and the scope of liability is reliance interests. After defining the scope of reliance interests clearly, this article makes some appropriate restrictions by the civil Doctrine of Liability Fixation of Damages.