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Chapter 2 - Fundamental Principles and Historical Origins

Published online by Cambridge University Press:  23 January 2020

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Summary

Before analysing the details of the treatment of liability for breaking off negotiations in the selected jurisdictions and in the contrasting jurisdiction, it is important to address generally the fundamental principles that underlie the doctrine of precontractual liability (reliance and freedom) and to highlight the presence of the notion of reliance since the conception of the doctrine.

RELIANCE

NOTION AND DIMENSIONS

This book does not deal with the theory of reliance which has been put forward as the foundation of the binding force of contracts, but it will show that the notion of reliance applied in the precontractual period has a similar content in that it refers to a trust that is placed on an expectation : not that a contract has been concluded, but that a contract will be concluded. The use of ‘reliance’ throughout the book is loose and non-technical, except where it is stated otherwise, in order to encompass these notions of trust and expectation, so that this one term (which can be translated as Vertrauen, croyance/confiance and confianza in the selected jurisdictions) includes all these notions.

The book argues that there are two dimensions of reliance in cases of broken negotiations, referring to them as ‘trust-based reliance’ and ‘expectationbased reliance’. The former seeks to highlight the element of trust which exists or should exist between negotiating parties and the latter focuses on a specific expectation in the future conclusion of the contract under negotiation (‘the negotiated contract’). Both dimensions, as well as their interaction, are identified in each selected jurisdiction and in the contrasting jurisdiction, and analysed in detail in the comparative chapter.

ON THE ORIGINS OF THE DOCTRINE OF PRECONTRACTUAL LIABILITY

A historical study of this doctrine in the selected jurisdictions is outside the scope of this book, which focuses on the current state of the law in each jurisdiction. Nevertheless, it is relevant to point out briefly that the notion of reliance has been present from the conception of the doctrine in Germany and France, and, in the case of Chile, to provide a succinct historical account of the reception of the doctrine, particularly in the case of breaking off negotiations.

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Chapter
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Reliance in the Breaking-Off of Contractual Negotiations
Trust and Expectation in a Comparative Perspective
, pp. 11 - 20
Publisher: Intersentia
Print publication year: 2019

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