Published online by Cambridge University Press: 10 August 2009
A, who has a bookshop on High Street hears that C, a nationwide chain of bookshops, is negotiating with B to buy for €1.2m large premises that B owns and which are located opposite to A's shop. A fears competition from C, and so starts negotiations with B for the purchase of the premises, pretending he wants to move his shop to larger premises and that he is prepared to pay €1.5m. This makes C withdraw from the negotiations and C decides to buy another shop on Market Street at the other end of town. After that A breaks off his negotiations with B. Ultimately B succeeds in selling the premises for only €1m. What liability (in contract, tort, restitution or any other form of liability), if any, does A have to B?
The General Civil Code of Austria of 1811 (ABGB) contains no specific provision dealing with precontractual liability or culpa in contrahendo in general, since this concept was ‘discovered’ by the German scholar Rudolf von Jhering some 50 years after the Austrian codification. Nevertheless, precontractual liability has become an acknowledged concept in Austria.
The ABGB makes no clear distinction between contractual liability and non-contractual (or delictual) liability. Nevertheless, there are a number of differences which make it more favourable to a victim to bring a claim that is based on contractual liability rules, rather than on tortious grounds. Since contractual liability provides these considerable advantages for the victim, ‘contract shopping’ is attractive.