N. 8 – 2009 – Contributi
Doctrine of culpa in contrahendo in Russian Civil
Law
Russian
Academy of Sciences
Table of content: 1. Creation
and Evolution of the Pre-Contractual Liability in European Civilian Tradition.
– 2. Pre-Contractual
Liability in Russian Civil Legislation.
The legal institution of pre-contractual
liability, the existence of which is recognized in doctrinal conceptions and court
decisions of each Civil Law country, unifies all cases of damage causing in
negotiations regardless of the validity of a contract or of the fact of its
conclusion. The consequences of negligence in celebration of contract can
(depending on circumstances) consist in signing of a void contract or in
signing of a contract, which is valid, but which results in unjustified loss
for the offended party. Moreover, it can happen that a party in fault
defalcates its partner by breaking off negotiations. In this situation a party,
which had faith in successful outcome of the negotiations, suffers loss, if it
made any preparations for performance of obligation.
1. – Creation and Evolution of the Pre-Contractual Liability in European
Civilian Tradition
The starting point of the theory
concerning pre-contractual liability is bound with the Jhering's article of the
year 1860 about culpa in contrahendo
or redress of wrong caused by void or unconcluded contracts[1]. The point of reference for his research
was a number of cases, in which one of the parties of a contract suffers damage
because of its faith to the validity of a contract concluded, while another
party knows or must know any facts which have caused invalidity of the
contract, but says nothing to the partner[2]. Jhering concludes that it is unfair to
deny aggrieved party the legal protection. He tries to find out a solution of
this problem in the light of Roman Law, which was an actual law of the German
countries in the 19th century, and by virtue of rules contained in Modern
codifications. He thought that a rule granting legal protection in such cases
was included in the First Part, Fifth title, Art. 284 of the Civil Code for the
Kingdom of Prussia from the year 1794, due to which in cases of culpability in
formation of contract it was
necessary to use rules determining
the legal effect of fault in performance of contract[3].
Before Jhering this legal norm was understood as to be applied only in cases of
guilt in formation of a valid contract[4].
Reasonableness of Jhering's opinion concerning this rule was avowed in Pandect
Law, for instance by Heinrich Dernburg[5].
But the hardest argument adduced by
Jhering for the existence of such liability in the law system is bound with the
Roman law material, because the Roman (Pandectal) law was an appendant source
of current law for German countries until 1900[6]. He demonstrates that in Corpus Iuris Civilis there is a lot of
means for the redress of wrong arisen in the negotiation stage in any special
cases. For instance, Roman jurists gave right to compensation of damages
suffered by purchaser, who had bought a res
extra commercium (non-negotiable thing) or a non-existent hereditas (legacy):
D. 18.1.62.1. Modestinus libro quinto regularum… Qui nesciens loca sacra
vel religiosa vel publica pro privatis comparavit, licet emptio non teneat, ex
empto tamen adversus venditorem experietur, ut consequatur quod interfuit eius,
ne deciperetur.
Inst. Just. 3.23.5. Loca sacra vel
religiosa, item publica, veluti forum basilicam, frusta quis sciens emit, quas
tamen si pro privatis vel profanis deceptus a venditore emerit, haberit
actionem ex empto, quod non habere ei liceat, ut consequatur, quod sua interest
deceptum eum non esse. Item iuris est, si hominem liberum pro servo emerit.
D. 11.7.8.1. Ulpianus libro vicensimo quinto ad edictum… Si locus
religiosus pro puro venisse dicetur, praetor in factum actionem in eum dat ei
ad quem ea res pertinet: quae actio et in heredem competit, cum quasi ex emptio
actionem contineat.
D. 18.4.8 et D. 18.4.9: l. 8. Iavolenus libro secundo ex Plautio. Quod
si nulla hereditas ad venditorem pertinuit, quantum emptori praestare debuit,
ita distingui oportebit, ut, si est quidem aliqua hereditas, sed ad venditorem
non pertinet, ipsa aestimetur, si nulla est, de qua actum videatur, pretium
dumtaxat et si quid in eam rem impensum est emptor a venditore consequatur. l.
9. Paulus libro tricensimo tertio ad
edictum. Et si quid emptoris interest.
On the basis of these texts Jhering created a general theory of
pre-contractual liability for a void contract, according which it is possible
to compensate any damage, caused by formation of a void contract, by means of a
contractual claim[7].
So Jhering generates a theory about partial effect of a void contract and at
the same time a paradox of a contractual and simultaneously pre-contractual
liability[8].
Jhering supposes such liability[9],
if the contract is invalid on the grounds of the legal prohibition for one of
the parties to create a contract (for instance, for minors)[10],
of impossibility of performance of the obligation[11]
and of the inauthenticity of the will to conclude a transaction (inauthenticity
of the declaration of will as well as of the will)[12].
So the party counciously silent about any ground for invalidity of the contract
is liable for this silence. This liability is limited to the damage caused by
the non-validity of the contract – negative interest, but the
reparation of damages can't be more than positive interest, that is than
profit, which this party could have in case of validity of the contract[13].
This conception of Jhering produced an ambiguous reaction of
German law science. Some authors rejected dogmatic ground and practical
requirement of liability for fault in
formation of contract[14].
Others Pandectists were ready to accept – if nothing else –
practical benefits of this theory[15].
But it was generally agreed that in the German law of the 19th century there
were legal grounds to adopt Jhering's theory concerning liability for
invalidity of a contract. This opinion was applied by German courts before the
introduction of the German Civil Code into operation over and over again[16].
It is impossible to find the doctrine of culpa in contrahendo as a general principle of the German Civil
Code promulgated in 1896 (BGB), which came into effect from 1 January 1900[17].
But some articles of the Code were produced under the influence of this idea.
In the initial redaction of the BGB it was only 4 Articles relating to the
problem of a contract, which was invalidated because of culpa in contrahendo.
The Article 122 establishes that the party mistaken or who caused the
misunderstanding, is obliged to compensate the other party for the damage,
which this party had sustained by relying upon the validity of the contract,
but not beyond the value of the interest, which this person has in the validity
of the contract[18].
According the Article 307 of the initial redaction of BGB[19]
a person concluding a contract, performance of which was impossible, was
obliged to make compensation for any damage, which the other party had
sustained by relying upon the validity of the contract. Article 309 extended
the application of article 307 to the case of an illegal contract[20].
Moreover, such duty to compensate damage is applied to the person, which came
into formation of a contract as a representative of another person in the
absence of power to act (Article 179)[21].
The inclusion of the principle of culpa in contrahendo was a
result of both doctrine and judicial practice. Until 1910, the Germane Supreme
Court discredited the principle of liability for guilt in the formation of the
obligation in cases, which weren't implicated into the text of the Civil Code[22].
The explanation of the Article 276 BGB regarding debtor's responsibility was
that this rule only dealt with the bound party in the obligation as liable. The
article assumes that the obligation already exists. Another points of view from
time to time appearing in the doctrinal articles were left without attention.
But in the course of time the material was made so overwhelming that the
compromise proposal of Leonhard was accepted as the right solution. According
to Leonhard, the liability for the guilt in formation of contract is to be
recognized in cases, in which parties despite of the fault in celebration of contract finally arrive at the formation of a valid contract as well[23].
This opinion was adopted by the German Supreme Court on 26 April
1912 by investigation of a civil case, which was named as
"Luisinlichtsfall"[24].
The court decision recognized such liability as a consequence of bona fides, but rejected the application
of culpa in contrahendo, because this theory – so in the text of decision
– units only the cases of pre-contractual liability for invalidity of the
contract. Despite of this fact, German doctrine of civil law began to see in
such situations a particular case of culpa in contrahendo from the middle of
the second decade of 20th century[25].
Further, the expansion of the culpa in
contrahendo principle was bound with the relative weakness of German tort law,
which doesn’t knew the idea of the general liability for each
damnification (general delictum concept). On the contrary, German doctrine
deals with a number of individual tort acts. Outside that there exists only a
liability for malicious intent (dolus),
but not for negligence (culpa)[26].
As a consequence, a person injured in the placement of its partner has no means
to compensate the damage with help of tort claim. But from the 1911 the Supreme
Court of Germany recognized in cases of health hazard in formation of contract
features of damage produced by culpa in
contrahendo. In the decision from the 7 November 1911 Supreme Court saw in
the beginning of negotiating process a ground for the liability[27].
This opinion was extended in 1961 by the Federal Supreme Court of Federal
Republic of Germany, which accepted that liability for the health hazard on the
ground of culpa in contrahendo arises
from the moment, in which a person, potential contractor, has come into a shop,
hotel, restaurant etc.[28].
In the following development of culpa in
contrahendo doctrine in literature and judicial practice it was recognized a
contractual liability with respect to negotiations even if they would not have
arrived at the formation of a valid contract. There were many theoretical
debates concerning dogmatic nature of this liability and its doctrinal basis.
At the end of third decade of 20th century it had been accepted an existence of
the unit institution of pre-contractual liability for each fault in the
negotiation process or in formation of contract in German civil law[29].
A final result of this principle’s
evolution we can see in the new redaction of the article 311 BGB[30],
made by the reform of the law of obligations on 1 January 2002[31].
Now an obligation can be grounded not only by conclusion of contract, but else
by coming into negotiations about contract. This pre-contractual,
"preparatory" obligation produces some pre-contractual duties
concerning negotiating. Their non-fulfilment gives grounds for the pre-contractual
liability. This rule creates liability for culpa in contrahendo and at the same
time explains its contractual nature[32].
After the development of the principle of
culpa in contrahendo in German civilian doctrine this theory was adopted in
each Civil Law country. The way of the pre-contractual liability’s
evolution in Austrian and Swiss law doctrine and jurisprudence was very similar
to the same process in Germany. Some sporadic norms of the
Austrian Civil Code (ABGB) served as a normative basis for the theory of
pre-contractual liability in Austria. They prescribe a duty to compensate
damage if parties conclude a void contract because of delusion or mistake (Art.
871), making a contract under the influence of craftiness or fear (Art. 874) or
because of concluding a contract connecting implicit clause. Pre-contractual
liability is also adopted in the Austrian Civil Code for the cases of
invalidity of transaction concluded for purpose contrary to the legal rules and
morality. Moreover such liability was legally recognized in 1916 for the
situation of invalidity of a contract, the performance of which was impossible
at the moment of signing (Art. 878). The development of the pre-contractual
liability in Austrian jurisprudence at the beginning of 20th century was determined
by popularity of such conceptions in Germany and happened by means of creative
interpretation of legal texts in doctrine and practice. The liability for culpa
in contrahendo is recognized in Austria in all cases of such liability in
Germany, the liability for the health hazard excluded,
because it is innocent to strengthen the tort law of ABGB, which knows a
principle of general liability for any damage[33].
In the same way the liability for
negligence in formation of contract was recognized in Switzerland. The Swiss
Civil Code and the Law of Obligations don't know the general application of
pre-contractual liability. Such liability was firstly applied by the Swiss
Supreme Code in 1932. Since 1951
the judicial practice of Switzerland concerning culpa in contrahendo is
identical with Austrian one[34]. Such liability is recognized also in
civil law doctrine of France[35].
The general principle of liability for culpa in contrahendo is fixed in some
other civil codes of European countries, such as in the Articles 197 and 198 of
Civil Code for Greece[36] and in Articles 1337 and 1338 of Italian
Civil Code[37].
The principal cases of culpa in
contrahendo that is of the negligence in the negotiation stage may be arranged
in the following way. First of all, the liability in formation of contract can
take place, if negotiations didn't finish with creation of a valid contract. In
a number of instances, the parties begin negotiations, and one of them pears
the expenses in anticipation of the expected formation of a contract. These
expenses are unless, if the contract concluded is invalid because of any
reasons (such as: latent disagreement, failure to comply with the required form
of transaction, lack of the subsequently approvement of the transaction, if
such approvement is required by law, concluding of the transaction
disturbing the legal rules and morality etc.) and if one of the parties breaks
off the negotiations and rejects a conclusion of the contract – contrary
to its previous behavior, promises, declarations (doctrine of venire contra factum proprium). The
compensation of damage is determined by negative interest of the injured party.
Such liability is also applied in cases of conclusion of transaction by
unempowered person, and duty to compensate the damage can arise for falsus
procurator as well as for the person represented.
If negligence in formation of contract doesn't produce its
invalidity, but a contract is not so profitable as it could be in case of duly
performance of pre-contractual duties, the party in fault must compensate the
damage, occurred from its culpa in
contrahendo. The compensation of damage is determined by positive interest
of the injured party if the civilian doctrine of the country adopted the
interest theory (for instance, Germany); otherwise the compensation is
determined by negative interest.
It is to be considered as a German peculiarity and Spezialität of the culpa in
contrahendo doctrine the liability for health hazard in negotiations, which is
explained by the distinctive feature of German tort law.
2. – Pre-Contractual Liability in Russian Civil Legislation
The problem of pre-contractual liability is actually important
for the modern Russian civil law doctrine. A lot of special cases of such
liability exists in the positive law. Some of them are even inherited from the
former Soviet law. They gave rise for discussion about characteristics of legal
effect of culpa in contrahendo[38].
Practical necessity of such legal institution is imposed by the complicated
commercial traffic, and there is no reason to deny such liability on the basis
of rules and principles of the actual law.
The situation with pre-contractual liability in Russian positive
law is in many aspects similar to German Civil Code before the reform of the
law of obligations in 2001. There are some rules of the Civil Code, which
provide the liability for culpa in
contrahendo in concluding of an invalid contract and in cases, when damage
for the injured party is produced by unprofitableness of the transaction
because of an unduly performance of pre-contractual duties by its contractor.
In the latter cases the norms about the liability for culpa in contrahendo are implicated in the rules concerning
individual types of obligations. Finally, there are cases of liability for culpa in contrahendo in illegitimate
breaking off negotiations. It is possible to produce a general principle of the
pre-contractual liability, based upon the idea of bona fides and on the
particular cases of liability for culpa in contrahendo implemented in current law,
by an appropriate doctrinal substantiation.
First of all we must speak about the Article 178 of Russian Civil
Code, according to which the party, at whose suit the transaction was deemed to
be invalid as concluded under the influence of delusion having material
significance, has the right to demand from its contractor a compensation for
real damage caused to it, if it is proved that the delusion arose through the
fault of the other party[39].
Otherwise, the party, at whose suit the transaction was deemed to be invalid,
is obliged to compensate the other party at its demand the real damage caused
to it, even if the delusion arose through circumstances not dependent upon the
deluded party.
As we have just seen, this rule repeats all in all the article
122 of German Civil Code. But in its Russian analogue the cause of delusion is
taken into consideration, whereas German rule imposes responsibility on the
deluded party irrespective of its fault. On this basis we can conclude that the
Russian interpretation of this kind of liability is closer to the classical
scheme of liability for culpa in contrahendo, then the model of German Civil
Code, which has raised heated debate regarding its qualification as a case of
culpa in contrahendo.
The liability of unempowered representative is determined by
article 183 of Russian Civil Code. It says that falsus procurator himself is a party of the contract concluded, if
the person represented by him doesn't approve expressly the concluded
transaction. Such solution gives rise to demand from falsus procurator a compensation of damage caused by his culpa in contrahendo as a compensation
for non-performance of the contract.
The liability for the damage caused by illegitimate breaking off
negotiations is limited for the cases of evasion of notarial certification of
the transaction, if such certification is required by law or parties agreement,
and for the cases of evasion of State registration. Taking into consideration
the special requirements of the Article 165 CC[40],
the offended party can demand a full compensation of losses. Moreover, such
liability is recognized in cases of breaking off negotiations concerning
contracts of supply (Art. 507 CC[41])
and regarding contracts with consumers.
The liability for culpa in
contrahendo in formation of a valid contract is recognized concerning many
special types of contracts, e.g. retail purchase and sale (Art. 495 CC[42]),
contracts of gift (Art. 580 CC), of lease (Art. 612 and Art. 613 CC), of
uncompensated use (Art. 693 and 694 CC[43]),
of storage (Art. 894 CC). Grounds (guilt or causing of damage without fault),
conditions and limitations of amount of responsibility are depending on
circumstances variable. Besides the Consumer legislation of Russia (Art. 12)
knows the general principle of pre-contractual liability for each damage
incurred by a consumer.
Russian civil law has no need to adopt a pre-contractual
liability for health hazard in negotiations, because the article 1064 CC
contains the principle of general liability for each damage. That's why the
liability for culpa in contrahendo could be recognized as a general principle
for the situations of pre-contractual liability in case of lack of a valid
contract, including the pre-contractual damage deriving from illegitimate
breaking off negotiations and liability of
falsus procurator for his
unempowering, and for the situations of damage caused by the unprofitableness
of the contract concluded. There is no legal barrier for producing of such
principle.
In spite of this, there are authors thinking that the liability
for culpa in contrahendo exists only
in cases, expressis verbis mentioned
in the legislation[44].
Such opinion demonstrate, e.g., A. Kucher and K. Ovchinnikova. Meanwhile they
misunderstood the principle of pre-contractual liability in West European
doctrines. Moreover, they try to recognize the liability for culpa in contrahendo in such situations,
which are traditionally separated from this liability in European legal
systems. For instance, they think that the Article 179 CC is a particular case
of culpa in contrahendo[45].
But this article deals with the problem of invalid transaction, concluded under
influence of fraud, coercion, threat, or ill-intentioned agreement of a
representative of one party with the other party or confluence of grave circumstances
– that is with the problem of dolus
in contrahendo, which is separated from the area of culpa in contrahendo, understood as negligence in formation of
contract. History of law demonstrates that dolus
in contrahendo and culpa in
contrahendo have nothing common. They were produced in different times,
have different grounds and limits of liability, different legal effects,
including legal effects for validity of a transaction. Whereas damage caused by
dolus in contrahendo may be compensated by means of a regular tort claim[46],
the compensation for damage deriving from culpa in contrahendo call for a
special action.
Moreover, opponents of the general liability for culpa in contrahendo want to see it
in cases of invalidity of
transactions, concluded by minors or by citizen without a fully dispositive
legal capacity. The rules of such articles (art. 171 – 172, 175 –
177 CC)[47]
presume that a party having dispositive capacity is obliged to compensate the
other party the real damage incurred by it if the party having dispositive
capacity knew or should have known about the lack of fully dispositive legal
capacity of the other party. These situations are very similar to the cases of culpa in contrahendo, but there is one
important distinction between they: whereas culpa
in contrahendo presumes liability for incorrect performance of
pre-contractual duties, which can be marked as duties to inform other party
about significant circumstances and to explain such circumstances, the
compensation of real damage by party having dispositive capacity doesn't
presume such pre-contractual duties and can be defined as an independent
consequence of the idea of bona fides.
The attempts to consolidate so different rules as consequences of
idea of supposed culpa in contrahendo
disables the followers of such point of view to produce a general principle for
unification of these situations.
Prof. Oleg Sadikov expressed a more correct view. He thinks that
the principle of culpa in contrahendo
can be derived from the norm of the first part of the 10th Article of the Civil
Code. It states that it is not permitted to abuse a right[48].
But the real basis for this principle is the idea of bona fides deriving from the third part of the same article. We
must agree with the author’s logic. There is no reason to deny the
general principle of liability for culpa
in contrahendo. The doctrinal ground for this principle is the idea of bona fides. According to it and with regard to the literal text of
the Civil Code it is possible to access that the beginning of negotiations
generates a pre-contractual obligation. Its imperfect performance produces a
pre-contractual liability that is an obligation to compensate the damage caused
in formation of contract. This model of pre-contractual liability, which construes
such liability per sample of German doctrine as a pre-contractual liability of
contractual type, is applicable in the actual civil law system of Russia without its
any transformations.