Published online by Cambridge University Press: 23 January 2020
The aim of this book is to explore precontractual liability for breaking off negotiations and to discover its theoretical basis, offering an analysis which is detached from problematic notions, such as good faith and abuse of rights (which have traditionally been claimed as bases of this liability), and finding its basis, instead, in the notion of ’ reliance ’. The objective is to contribute to the comparative analysis of this area of liability, removing the hurdles that obstruct the view of the core notion that is operating at its heart. Thus, it will be argued that by shifting the analysis to the notion of reliance, jurisdictions that are currently reticent in acknowledging this liability could embrace and implement it.
The scope of this book is limited in several aspects. First, the focus is on finding the doctrinal basis of precontractual liability for breaking off negotiations. Thus, remedies are only dealt with briefly in order to show that they correspond to the reliance basis.
Secondly, the analysis is limited to the ’ selected jurisdictions ‘ : Germany, France and Chile. Germany and France have been selected because they are, respectively, the leading European jurisdictions of the Germanic and Franco-Roman legal families of the civil law system, and because both have contributed crucially to the development of the doctrine of precontractual liability. Chile has been selected because it is a leading jurisdiction in Latin America which has had a particularly interesting reception process of this doctrine, taking elements both from the German and the French developments. Additionally, by selecting Chile, precontractual liability is taken out of its typically European dimension and placed in a more global context, in order to demonstrate the relevance of the topic. English law is analysed as a ‘contrasting jurisdiction’ in that, as opposed to the selected jurisdictions, it does not provide a remedy in what will be called the ‘paradigm case’. Harmonisation instruments are only analysed in relation to the reliance-based remedies that they provide.