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Chapter 5 - Reliance in the Breaking-Off of Negotiations in Chilean Law

Published online by Cambridge University Press:  23 January 2020

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Summary

The doctrine of precontractual liability entered into Chilean law and has become established via a process of mixed reception of ideas emanating from the French doctrine of responsabilité précontractuelle and the German doctrine of culpa in contrahendo. This chapter will focus on the current state of precontractual liability for breaking off negotiations in Chilean law. Throughout the chapter it will be highlighted where Chilean law comes closer to German or to French law, but it will begin by referring to certain aspects of the doctrine of precontractual liability where it is clear that la doctrina and la jurisprudencia have taken elements from the German or from the French tradition and have sometimes combined these elements into a Chilean hybrid (section I). The chapter will continue with the analysis of the different theoretical bases that have been used to justify the imposition of precontractual liability for breaking off negotiations (section II), arguing in favour of the notion of confianza, which corresponds to the German notion of V ertrauen and the French notion of croyance/confiance légitime (II 1). The role that the principle of good faith (II 2) and the doctrine of abuse of rights (II 3) have played in providing a foundation for this liability will also be explored. The chapter will then look at the requirements of precontractual liability for breaking off negotiations that have been outlined by la doctrina and la jurisprudencia (section III). It will continue with the analysis of the particular scenarios of broken negotiations for the conclusion of a formal contract and lack of formality cases, as these seem to be the types of cases most frequently disputed before the courts (section IV). The chapter will argue that reliance, embodied in the notion of confianza, is the core element of precontractual liability for breaking off negotiations in Chilean law.

AT THE CROSSROADS BETWEEN GERMAN AND FRENCH LAW

The doctrine of precontractual liability in Chilean law has continued to be mostly influenced by the developments of the doctrine in both German and French law. La doctrina and la jurisprudencia, when discussing precontractual liability for breaking off negotiations, frequently refer to legal scholars and judgments from these European jurisdictions.

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Reliance in the Breaking-Off of Contractual Negotiations
Trust and Expectation in a Comparative Perspective
, pp. 99 - 142
Publisher: Intersentia
Print publication year: 2019

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