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Journal articles on the topic 'Pre-contractual liability'
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1
Kim, Ho, and Joon-Duk Han. "Pre-Contractual Liability in International Commercial Contracts." Advanced Science Letters 23, no. 10 (October 1, 2017): 9612–15. http://dx.doi.org/10.1166/asl.2017.9758.
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Demkina, Alesya V. "FUNDAMENTALS OF THE THEORY OF PRE-CONTRACTUAL LIABILITY." Vestnik Tomskogo gosudarstvennogo universiteta. Pravo, no. 40 (2021): 148–61. http://dx.doi.org/10.17223/22253513/40/13.
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The article deals with the relatively new rules of Art. 434.1 the Civil Code of the Russian Federation on the conduct of negotiations. Taking into account the current wording of the said rule and the experience of foreign legislation on pre-contractual liability, the article argues for different theories justifying the nature of pre-contractual legal relations and liability and gives different positions of the authors on this issue. Proceeding from the doctrinal concept of obligation and characteristics of pre-contractual relations themselves the conclusion is made that these relations, firstly, are regulated by law and, secondly, they are not simply a legal relation but an obligation. It is based on certain actions of the negotiating partners that give rise to such an obliga-tion. As such, any action that is sufficiently certain (in some cases it may be required by law) and expresses the intention of the person to regard himself as negotiating with the addressee, who will in return perform the same sufficiently certain action, can be regarded as such. The specified characteristics of an action allow us to conclude that, from the point of view of classification of legal facts, this action is an act (because it is performed with a certain in-tention evident to other participants of civil turnover) and, moreover, it is also a transaction. Special rules of the Civil Code of the Russian Federation stipulate that the actions performed to enter into negotiations (for example, if the conclusion of a contract is binding on one party) or the actions of both partners entail legal consequences - the obligation to negotiate in good faith. The analysis of these legal relationships identifies three stages in their development, charac-terises them and attempts to answer more precisely the question of who can be a participant in the negotiation process depending on the stage of the negotiation process. The subject matter of an obligation arising during pre-contractual contacts will be actions aimed at negotiating and concluding a contract. The content of the obligation arising in the course of pre-contractual contacts, based on Art. 434.1 of the Civil Code will be the obligation to negotiate in good faith (paragraph 2 of the above rule). Assuming that the legislator provides an indicative list of actions that should fall within the scope of bad faith conduct, an indicative list of the "standard" of good faith conduct at the negotiation stage is given. This includes the obligation to provide full and truthful information to a party, including the reporting of circumstances that, due to the nature of the contract, must be brought to the attention of the other party (e.g. in a sale, all encumbrances on the subject of the contract must be reported). In addition, persons are obliged to negotiate only if they intend to conclude a contract, not to terminate negotiations suddenly and unjustifiably, and to take into account the rights and legitimate interests of the other party to the negotiation. The obligation under this obligation may also include a requirement not to disclose infor-mation obtained during the negotiation of the contract.
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Boyarinova, V. I. "Grounds for Pre-Contractual Liability of a Medical Organization." Juridical science and practice 17, no. 4 (February 8, 2022): 37–45. http://dx.doi.org/10.25205/2542-0410-2021-17-4-37-45.
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The article examines the issue of the basis and such conditions of pre-contractual liability of a medical organization, such as wrongfulness and guilt. As a result of the analysis, it is concluded that the guilt and unlawfulness of a medical organization, when it is brought to pre-contractual liability, are supplemented by a condition of bad faith, which may complement guilt or wrongfulness or not be applied at all. In cases where the norms of the law are violated, an additional characterization of the behavior of a medical organization as unfair is not required.
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Alessi, Dario. "Enforcing Arbitrators Obligations: Rethinking International Commercial Arbitrators Liability." Journal of International Arbitration 31, Issue 6 (December 1, 2014): 735–84. http://dx.doi.org/10.54648/joia2014035.
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Liability of arbitrators touches the heart of the concept of arbitration as it affects the legal relationship between the arbitrators and the parties and concerns some essential issues on the nature of the arbitrator's mandate. This article intends to propose an alternative conceptual approach to the immunity-based theories, endorsing the suggestion that the arbitrator shall be liable as any normal intellectual service provider for breach of her obligations. Regarding the regime of liability, a systematization is proposed whereby strict liability, fault-based liability and tortious liability cohabitate. This relationship is argued being contractual. The existence of an objective contractual exchange underlies contractual liability for breach. As a consequence, the thesis proposed in this article is that the arbitrator shall be liable for breaches of the obligations contractually incurred. These contractual obligations can be divided into two main clusters, namely, the obligation to decide the dispute submitted and the obligation to provide a fair and equal adjudication. Thus, a dual regime of contractual liability for arbitrators is proposed. A separate set of obligations is represented by the pre-contractual duties of disclosure, which are tort-based. The plain existence of a contractual relationship between the arbitrator and the parties automatically sets aside all those theories claiming that because of the status or for some policy argument, the arbitrator must be immune from liability. As a consequence, any immunity or qualified immunity-based theory is rebutted in favor of a full liability-based conceptual scheme.
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Visser, A. D. "Should international commercial parties take pre-contractual liability into consideration?" European Journal of Commercial Contract Law 12, no. 2 (November 5, 2020): 31–38. http://dx.doi.org/10.7590/187714620x16027714197928.
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Michoński, Dominik. "Contractual or Delictual? On the Character of Pre-contractual Liability in Selected European Legal Systems." Comparative Law Review 20 (October 13, 2016): 151. http://dx.doi.org/10.12775/clr.2015.016.
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Belozerova, Elena Olegovna, and Aleksandr Andreevich Zaria. "Application of the civil law institution of pre-contractual liability to labor relations." Право и политика, no. 10 (October 2021): 99–116. http://dx.doi.org/10.7256/2454-0706.2021.10.36544.
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The subject of this research is the legal relation that arise between the employee and the employer prior to signing employment agreement. Such relation, which suggest interviews, negotiation costs, etc., are not regulated by the Russian legislation. However, the number cases when the party suffers losses due to unfair conduct of negotiation by the other party increases. If the relations before conclusion of employment agreement are viewed from the perspective of labor legislation, there is no mechanism of compensation for damage. The article analyzes the need for inclusion of negotiations to the sphere of regulation of civil legislation and feasibility of application of the norms on pre-contractual liability in case of detection of bad faith. The author explores the foreign practice of implementation of the institution of pre-contractual liability in the sphere of employment. The novelty consists proving the expediency of application of civil law instruments to the relations under consideration. The article describes the procedural peculiarities of application of pre-contractual liability to the relations preceding labor relations. The following conclusions are made: relations that arise prior to signing employment agreement are referred to as civil relations, and do not intersect with employment relations; the job offer represents a formal offer within the framework of the Civil Code of the Russian Federation.
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Bachvarova, Margarita. "Special Aspects of the Pre-Contractual Liability when Concluding Commercial Transactions." Izvestia Journal of the Union of Scientists - Varna. Economic Sciences Series 9, no. 2 (2020): 145–52. http://dx.doi.org/10.36997/ijusv-ess/2020.9.2.145.
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Kruzhevnikova, A. A. "The legal nature of pre-contractual liability in modern civil legislation." Аграрное и земельное право, no. 10 (2021): 51–53. http://dx.doi.org/10.47643/1815-1329_2021_10_51.
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Henrik Edlund, Hans. "Culpa in Contrahendo: Tortious Liability, Breach of Contract or an Autonomous Legal Instrument?" European Business Law Review 30, Issue 5 (October 1, 2019): 815–22. http://dx.doi.org/10.54648/eulr2019033.
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The legal character of contract negotiations is much debated and different answers are given to the question whether disloyal behaviour committed during unsuccessful contract negotiations can be met by contractual or tort law remedies or, as a third possibility, some unique sanctions developed for this certain semi-contractual situation only. In this article, it is argued that an agreement to negotiate a contract is a contract in itself, although a very non-binding one – a pre-contract. Subsequently, breach of the parties´ duties relating to the pre-contract might be sanctioned by using contractual remedies. Most of the usual remedies, however, are not relevant, except for damages. These may be measured according to the principles on expectation interest, but in this specific situation the outcome will be almost identical with damages that are calculated according to the reliance interest. It is of course not possible to claim damages related to the contract that could have been the result if the contract negotiations had been successful.
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Prytyka, Yurii D., Mykhailo M. Khomenko, and Ievgeniia A. Bulat. "The Reform of Civil Legislation on Legal Liability." Global Journal of Comparative Law 10, no. 1-2 (June 25, 2021): 105–22. http://dx.doi.org/10.1163/2211906x-10010009.
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Abstract The article is devoted to the research of the institute of civil liability through the prism of recoding of the civil legislation of Ukraine. Particular attention is paid to the experience of a number of European Union countries in reforming civil legislation. The study used the following methods: dialectical, formal and legal, comparative legal. In the process of future recoding of the civil legislation of Ukraine, it is proposed to focus the attention of the expert community on the following problems: defining a system of non-contractual obligations; overcoming the dominance of blanket norms in the main act of civil law; revision of fundamental approaches to terms of exemption from civil liability; full revision of the rules governing liability for breach of monetary obligations; the need to enshrine pre-contractual liability rules; the implementation of institution of collective redress in substantive civil law; rethinking of approaches to the regulation of conditioning obligations.
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Bottoni, Francesco. "Partial Agreement and Contract Formation." European Business Law Review 31, Issue 2 (April 1, 2020): 337–44. http://dx.doi.org/10.54648/eulr2020014.
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The article discusses the possibility for contracts to be partially formed or not fully complete under the Italian Civil Code and how these are to be treated in relation to enforcement and remedies. Partial agreement, incomplete contract, letter of intent, pre-contractual liability, breach
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Мутай, Ирина, and Irina Mutay. "Development of the Principle of Good Faith and the Institute of Pre-Contractual Liability in Light of the Reform of French Legislation on Obligations." Journal of Russian Law 2, no. 2 (January 20, 2014): 91–100. http://dx.doi.org/10.12737/2243.
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On the materials of project of reforming of law of obligation in France the author researches law positions of French courts and legal scholars on good fair and pre-contractual responsibility, explaines importance of legislative basis of proposals on pre-contractual responsibility and its development by case law, makes conclusions of necessity of taking into account of achievements of foreign legal doctrine during formation of Russian case law.
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Paula, Giliker. "A Role For Tort In Pre-Contractual Negotiations? An Examination Of English, French, And Canadian Law." International and Comparative Law Quarterly 52, no. 4 (October 2003): 969–93. http://dx.doi.org/10.1093/iclq/52.4.969.
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The common law has traditionally regarded the question of pre-contractual liability as a matter of contract formation.2 Where the claimant is able to satisfy the rules of offer and acceptance, consideration, an intention to be bound, and certainty, contract law possesses a number of tools capable of resolving disputes arising prior to contract. For example, the courts will utilise the law of misrepresentation and mistake and, if necessary, imply terms to respond to questions such as the effect of pre-contractual representations or whether the claimant should be paid for work commenced prior to contract.3 Notably where a transaction between two commercial parties has been executed, the English courts have shown themselves particularly willing to intervene and ensure the validity of the agreement reached between the parties.4
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Chistyakov, P. D. "Withdrawal from Negotiations as the Basis for Pre-Contractual Liability under Russian and Foreign Law." Actual Problems of Russian Law 16, no. 11 (September 15, 2021): 83–98. http://dx.doi.org/10.17803/1994-1471.2021.132.11.083-098.
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The paper analyzes the criteria for unfair termination of negotiations as a basis for pre-contractual liability. There are 3 components of unfair interruption of negotiations: 1) entry into negotiations without the intent to conclude an agreement and their subsequent interruption; 2) arbitrary termination of negotiations if the counterparty has confidence in the conclusion of the contract; 3) untimely notification of the counterparty about withdrawing from the negotiation process. The author analizes the criteria for unfair breakdown of negotiations. They include the following: the counterparty has reasonable confidence in the conclusion of the contract and the absence of a valid reason for terminating business contacts. These criteria are relevant only for the second composition of the elements of unfair termination of negotiations. To be held liable for entering into negotiations without intending to conclude an agreement and for the subsequent withdrawal from them, it is not required to establish such criteria, and in case of untimely notification of the severance of business contacts, it is necessary to establish only one criterion, namely, the counterparty can reasonably believe in conclusion of the agreement. As a general rule, participants in pre-contractual relations have the right to conduct parallel negotiations with other persons. This possibility may be limited by entering into an exclusivity agreement. At the same time, in some cases, entering into parallel negotiations can be qualified as unfair behavior even without the conclusion of such an agreement.
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Poludniak-Gierz, Katarzyna. "Sanctions for Lack of Fulfilment of Information Duties: Searching for an Adequate Regulatory Model for Personalized Agreements." European Review of Private Law 28, Issue 4 (October 1, 2020): 817–39. http://dx.doi.org/10.54648/erpl2020050.
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The effectiveness of the protection-by-information model in consumer law depends primarily on the method of structuring pre-contractual duties and sanctions correlated with the lack of fulfilment of said duties. Modern legal doctrine considers applying technology to law-making i.e. to fix flaws in the existing protection-by-information model. However, during this discussion, the problem of sanctions for lack of fulfilment of information duties has been disregarded. This article fills this gap by exploring how the use of technology might influence the adequacy of contemporary sanctioning models. There are two main approaches towards how lack of fulfilment of information obligations should be sanctioned. First, the fact that consumer acts based on his false impression of reality can trigger liability. As a result, the individual protection mechanism (i. a. regulation of mistake and deceit) is seen as a proper sanction for non-compliance with information duties. Second, failing to provide pre-contractual information might itself be sanctionable. In this scenario, standardized protection mechanisms are preferred (Unfair Commercial Practices Directive, Consumer Rights Directive). However, the balance achieved by linking specific sanctioning mechanisms to particular pre-contractual obligations is disturbed by the use of personalization tools during contracting. Therefore, the postulate of answering the personalization of contracts with personalization of pre-contractual information duties is discussed. The possibility of extending the scope of personalization to sanctions of these norms is considered. Finally, the introduction of smart execution mechanisms is explored, and the influence of technical changes on the essential characteristics of protection-by-information model is observed.
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Kullolli, Dr Brunela. "Confidentiality - A Two-Appeal Principle." European Journal of Social Sciences 1, no. 3 (November 29, 2018): 53. http://dx.doi.org/10.26417/ejss.v1i3.p53-60.
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This article analysis relates to the creation of conditions for the conclusion of the contract.This is the moment when the negotiating parties determine whether there will be a contract or not. This is the stage that in the best case is finalized with the contract signing.Known as the pre-contractual stage, it is considered as the foundation of the contractual relationship.Conduct in good faith at the stage of entering into a contract would also avoid causing potential damages and liability".- The first part gives , of Completion of the contract in good faith, is a legal requirement under the Civil Laë tradition, but unlike the requirement for pre-contractual trust, finds place in the Common Law tradition.In this part of the study, the detailed treatment of the manner of performance of the contract will be set aside, focusing mainly on the obligations that dictate its fulfillment in good faith and the liability incurred in the event of its absence . The second part is concentrated, Contract Interpretation. The third part will be treated as a brief and comparative overview of the common law of Civil Law in the interpretation of the contract, taking into account the main interpretative criteria, to underline the main differences between them. Among all the criteria, the focus will be on trust, which is sanctioned as a special criterion of interpretation by the Civil Law countries. The fourth part analysis the validity of the contract.In this last part of the chapter, I will try to clarify the confusion created between the rules of contract validity and the rules of conduct, as well as the role and impact of the breach of the trust principle in the validity of the contract. Conclusions .Regarding the situations that arise for the damage that comes to the parties from non-fulfillment of obligations and breach of the principle of good faith during the contract's formation, it is necessary to clarify how the type of damage that came during the pre-contractual phase and which interest has failed to realize one of the parties. In fact, this is a genuine duty of the court which, as the case may be, must specify exactly: the responsibility of the parties, the interest that has been violated, the type of damage that has been caused.Keywords: contract law ,internal law ,contractual relation,internal contract interpretation, civil law
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Andò, Biagio. "The Mélange of Innovation and Tradition in Maltese Law: The Essence of the Maltese Mix?" Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 15, no. 3 (May 29, 2017): 68. http://dx.doi.org/10.17159/1727-3781/2012/v15i3a2503.
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Aim of this paper is to provide valuable insights into the Maltese legal system with a special focus on private law. The assumption is that this legal system is the by-product of the "mixing" of innovation and tradition, resulting from the interaction of English law and continental law. A major role in the development of the system is played by courts. Some examples (moral damages and pre-contractual liability) are considered which highlight the importance of the function displayed by Maltese judges.
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Канзафарова, І. С., and М. С. Федорко. "THE INSTITUTE OF PRE-CONTRACTUAL LIABILITY IN THE LIGHT OF RECODIFICATION OF CIVIL LEGISLATION OF UKRAINE." Constitutional State, no. 40 (December 2, 2020): 84–96. http://dx.doi.org/10.18524/2411-2054.2020.40.217598.
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Giliker, Paula. "Pre-contractual Good Faith and the Common European Sales Law: A Compromise Too Far?" European Review of Private Law 21, Issue 1 (January 1, 2013): 79–104. http://dx.doi.org/10.54648/erpl2013003.
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Abstract: This article examines the treatment of pre-contractual liability in the 2011 proposal of the European Commission for a Regulation on a Common European Sales Law (CESL). Pre-contractual liability, notably the imposition of a duty to negotiate in good faith, is an area of law in which considerable divergence currently exists between common and civil law legal systems. It thus presents a real challenge for those seeking to find a harmonized European contract law. This article will therefore focus on this aspect of the Commission's proposal and consider, in particular, the impact of its decision, in direct contrast to the Draft Common Frame of Reference and early drafts of the Expert Group Feasibility Study, to omit a general duty to negotiate in good faith and focus on more limited and precise duties of pre-contractual disclosure. To what extent is such a move consistent with the aims of the CESL to provide a second law of contract in each Member State that will be attractive to both business and consumer alike and ensure consumers a high level of protection? Résumé: Cet article examine le traitement de la responsabilité précontractuelle dans la proposition de 2011 de la Commission européenne de règlement instaurant un Droit Commun Européen de la Vente (le 'CESL'). La responsabilité précontractuelle, notamment l'imposition d'un devoir de négocier de bonne foi, est un domaine du droit où apparaissent actuellement des divergences considérables entre le système de la common law et celui du droit civil. Cette situation constitue donc un énorme défi pour ceux qui tentent d'harmonizer le Droit Européen des Contrats. Par conséquent, le présent article se concentre sur cet aspect de la proposition de la Commission et considère en particulier l'impact de sa décision, en contraste direct avec le Projet de Cadre Commun de Référence et les premiers projets de l'Etude de Faisabilité du Groupe d'Experts, d'omettre un devoir général de négocier de bonne foi et de se concentrer sur des obligations plus limitées et plus précises d'informations précontractuelles. Jusqu'à quel point une telle démarche est-elle compatible avec les objectifs du CESL visant à fournir une seconde réglementation légale des contrats dans chaque Etat membre qui intéressera aussi bien les professionnels que les consommateurs, et assurera aux consommateurs un niveau élevé de protection?
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M. Elsawi, Ahmed. "The civil liability of the consortium members for the individual mistake of one member." International Journal of Engineering & Technology 7, no. 2.13 (April 15, 2018): 272. http://dx.doi.org/10.14419/ijet.v7i2.13.12677.
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Nowadays, the various forms of contractual agreements have spread between the different contracting companies for the purpose of executing the huge international contracts which require the synergy of all efforts. This has led to the appearance of new forms of cooperation between the international contractors, called the "Consortium Agreement", which is a kind of special partnership entered into for the purpose of executing a certain project, and ends at the completion of this project, without the constitution of a separate entity for the parties of this consortium. Nonetheless, many and various legal implications result from this consortium, some of which may be attributed to the subordination relationship between this agreement and the international contract of construction; while other legal implications might be attributed to the Consortium Agreement itself. The main problem in this regard may arise, if the consortium members did not agree on the accurate determination of the civil liability for each party, whether it was during the pre-contractual stage, or during the contract's execution; as well as the specific determination of the consortium members' liability towards the employer for the individual mistake of one member, especially in light of the multiple parties and the unity of purpose. In this regard, the liability may take one of the following two forms: first, to consider all members of the consortium as joint partners before the employer; second, to adopt the personal liability of each member separately, thus, each member shall be liable only for the part assigned to him. Hence, we will try here to answer a major question regarding the liability of the consortium members for the individual error of one member towards each other or towards the employer, taking into consideration the special nature of the Consortium Agreement.
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Aryan, Shahram, and Bagher Mirabbasi. "Study on English and French Law." Journal of Politics and Law 9, no. 2 (March 31, 2016): 232. http://dx.doi.org/10.5539/jpl.v9n2p232.
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Accepting the principle of good faith in the pre-contractual period entails certain consequences. Observing this principle would require that the parties cooperate and exchange information by exhibiting utmost honesty, transparency, and seriousness in their preliminary talks towards achieving their mutual goals; and that each party, while respecting the information confidentiality of the other party and refusing to enter into parallel negotiations, shall respect the other party’s interests. The principle of good faith is not explicitly recognized as a general rule in Iran’s statutes. Although the necessity of observing the principle of good faith in all laws and obligations in all instances including the pre-contractual period can be proved using the principle of induction from the criteria stipulated in Article 8, Iran’s Law of Civil Liability (i.e., Law of Torts) as well as other current Iranian regulations, this method would not convince the legal Iranian community to accept the principle of good faith as a general rule. Therefore, social and economic imperatives would necessitate that the principle of good faith should be recognized explicitly in the Iranian statutes.
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BAYGUSHEVA, Yu V. "THE THEORIES OF THE OBLIGATION OF A REPRESENTATIVE WITHOUT AUTHORITY TO A THIRD PARTY: THE EXPERIENCE OF GERMAN CIVIL LAW AND ITS USE IN RUSSIA." Civil Law Review 21, no. 2 (July 12, 2021): 199–216. http://dx.doi.org/10.24031/1992-2043-2021-21-2-199-216.
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The purpose of the study is to determine the basis of the occurrence and the legal nature of the obligation of a representative without authority in case of refusal to approve the contract conducted by him. To achieve this purpose, the author turns to the history of para. 1 p. 1 and p. 3 of Art. 183 of the Civil Code of the Russian Federation and identifies the theoretical model that underlies these prescriptions. The legal regulation of the obligation of the representative was borrowed by the domestic legislator from the draft and the final text of the German BGB. The prescriptions for this undertaking were formed as a result of a heated debate that unfolded in the second half of the 19th century among German civil law experts. They developed the basic theories of an obligation of a representative without authority: a theory of tort liability, a theory of obligation from a guarantee agreement, a theory of pre-contractual liability and a theory of obligation to protect trust. The last theory turned out to be the most viable and was enshrined in the final version of § 179 BGB, and therefore in the paragraphs of Art. 183 of the Civil Code of the Russian Federation. The essence of this theory is that if a representative without authority concludes a contract on behalf of the principal who then refuses to approve, then a representative has an obligation to compensate a third party (counterparty) for property damage; this obligation follows from the prescription of the law and the trust of a third party in the existence of authority that the representative shows, regardless of the representative’s fault. The obligation of the representative without authority is not a tort liability or obligation from the guarantee agreement; this obligation is precontractual in nature, however, it cannot be considered as liability for unfair negotiation, as it arises without the fault of the representative. The theory of obligation to protect trust has not been well covered in Russian literature. The few domestic authors who answer the question about the basis of the occurrence and the legal nature of the obligation of a representative are supporters of the theory of tort liability, the theory of obligation from a guarantee agreement or the theory of pre-contractual liability.
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Jakaitė, Agnė. "Pareiga atskleisti informaciją komercinių ikisutartinių santykių kontekste." Teisė 81 (January 1, 2011): 104–18. http://dx.doi.org/10.15388/teise.2011.0.136.
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Publikacijos autorė analizuoja Lietuvos Respublikos civilinio kodekso 6.163 straipsnio 4 dalyje įtvirtintą reikalavimą ikisutartinių santykių šalims atskleisti viena kitai joms žinomą informaciją, turinčią esminę reikšmę sutarčiai sudaryti. Straipsnyje nagrinėjamas šio teisinio įpareigojimo turinys komerciniuose teisiniuose santykiuose Lietuvos civilinės teisės kontekste ir lyginamas jo vertinimas užsienio jurisdikcijose. Taip pat atsižvelgdama į tai, kad verslininkams pripažįstami didesni rūpestingumo pareigos standartai, o derybose dėl komercinio pobūdžio sutarčių taikoma žemesnio laipsnio pareiga atskleisti informaciją, autorė tiria šių pareigų santykio problematiką, kuri reikšminga nustatant ir ikisutartinės atsakomybės taikymo ribas.The author analyses the pre-contractual obligation to disclose the information which is of the essential importance for the conclusion of contract as established in the part 4 of the article 6.163 of the Lithuanian civil code. In this publication the content of this duty in commercial civil relations under the Lithuanian civil law is compared with its assessment in foreign jurisdictions. Considering that the higher standards are recognised for the duty of care to the professionals and that during the commercial negotiations the obligation to disclose information is applicable with the lower degree, the author of this article examines the relationship between these two mentioned requirements (i.e. duty to disclose and to duty of care) which are also significant in practice while determining the limits of the pre-contractual liability.
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Fuglinszky, Ádám. "Legal Transplants: Snapshots of the State of the Art and a Case Study from Central Europe – Post Transplantation-adjustment of Contractual Liability in the New Hungarian Civil Code." European Review of Contract Law 16, no. 2 (June 5, 2020): 267–99. http://dx.doi.org/10.1515/ercl-2020-0014.
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AbstractStrict contractual liability, foreseeability and non-cumul in the new Hungarian Civil Code are a living laboratory of legal transplantation. After an introduction (I) an overview is provided on the state of the art on legal transplants in seven theses (II). A case study follows next (III), sorted into three categories: ‘full legal transplants’ (comparative analyses took place both before and after the transplantation); ‘limping legal transplants’ (no a priori comparative considerations took place but the comparative toolbox is used in interpreting the new rules) and ‘surprising legal transplants,’ based on the spontaneous intuitions of the legislator having resulted in rejection and/or conversion into a ‘legal irritant’. The conclusions (IV) verify the significance of comparative analyses both in the pre- and post-transplantation phase.
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Rini, Ragil Kusnaning. "Urgensi Prinsip Kepatutan dan Keadilan (Redelijkheid en Billijkheid) Dalam Pembuatan Perjanjian Pendahuluan." Notaire 4, no. 3 (September 30, 2021): 425. http://dx.doi.org/10.20473/ntr.v4i3.27221.
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The principle of reasonableness and fairness (redelijkheid en billijkheid) is a pair of principles that are closely related and constitute an interpretation of the principle of good faith. So that the terms used in NBW are no longer good faith, but rather reasonableness and fairness. In the Netherlands, this principle is mandatory not only at the time of contract execution, but also at the pre-contract stage, giving rise to pre-contractual liability. Whereas to judge whether or not a preliminary agreement is binding, what must be observed first is the substance and not just based on the title. The importance of applying the principles of reasonableness and fairness in the preliminary agreement is to realize contractual justice and provide protection for weak parties when the expectations of the promises offered cannot be fulfilled. In essence, the principle of reasonableness and fairness requires proportionality among the parties. A preliminary agreement if the clauses are made without paying attention to the principles of reasonableness and fairness will have the potential to cause disputes. Furthermore, the party who feels aggrieved can file a lawsuit on the basis of an unlawful act and demand compensation for the costs that have been incurred.Keywords: Preliminary Agreements; Good Faith; Redelijkheid en Billijkheid.Prinsip kepatutan dan keadilan (redelijkheid en billijkheid) merupakan sepasang prinsip yang saling terkait erat dan merupakan penafsiran dari makna prinsip itikad baik. Sehingga istilah yang digunakan pada NBW tidak lagi itikad baik (good faith), melainkan kepatutan dan keadilan (reasonableness and fairness). Di Belanda, prinsip ini tidak hanya diwajibkan pada saat pelaksanaan kontrak saja, namun juga pada tahapan pra kontrak sehingga menimbulkan adanya pra-contractual liability. Bahwa untuk menilai mengikat atau tidaknya suatu perjanjian pendahuluan, maka yang harus dicermati terlebih dahulu adalah substansinya dan bukan hanya didasarkan pada judulnya saja. Pentingnya penerapan prinsip kepatutan dan keadilan dalam perjanjian pendahuluan adalah untuk mewujudkan keadilan berkontrak dan memberikan perlindungan terhadap pihak yang lemah manakala harapan dari janji-janji yang ditawarkan tidak dapat terpenuhi. Pada hakikatnya prinsip kepatutan dan keadilan menghendaki adanya proporsionalitas diantara para pihak. Suatu perjanjian pendahuluan jika klausul-klausulnya dibuat tanpa memperhatikan prinsip kepatutan dan keadilan akan berpotensi menimbulkan perselisihan. Selanjutnya terhadap pihak yang merasa dirugikan dapat mengajukan gugatan atas dasar perbuatan melanggar hukum dan menuntut ganti kerugian atas biaya-biaya yang telah dikeluarkannya.Kata Kunci: Perjanjian Pendahuluan; Itikad Baik; Redelijkheid en Billijkheid.
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Murray, Stephen. "Decommissioning liability for offshore oil and gas installations: planning for a happy ending." APPEA Journal 53, no. 2 (2013): 446. http://dx.doi.org/10.1071/aj12057.
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This extended abstract outlines the draconian statutory decommissioning liability regime for offshore installations in the UK Continental Shelf (UKCS), drawing comparisons with the other jurisdictions. The impact of the regime on regulatory and contractual requirements for decommissioning security that creates barriers for new entrants into the UKCS is highlighted. One such barrier is the calculation of decommissioning security by reference to the pre-tax cost of decommissioning (i.e. without considering tax relief on decommissioning expenditure at the time it is incurred). This extended abstract comments on recent novel proposals from the government to limit the amount of capital tied up in decommissioning security by adopting measures that will facilitate calculation of decommissioning security on a post-tax basis. The UKCS is a mature province and the government is seeking to balance its desire to maximise economic recovery from the UKCS with its policy objective of ensuring that taxpayers are not responsible for decommissioning costs. The proposals envisage that the government will enter decommissioning relief deeds with owners of offshore installations. This will provide certainty about the rate of relief they will achieve in relation to their own share of decommissioning expenditure; it also ensures relief is available where they incur such costs due to the default of other parties. In essence, the government is contemplating entering a form of stabilisation agreement that will provide redress in the event that future changes in law reduce the tax relief available for decommissioning expenditure. The proposals show a bold attempt to promote investment by addressing political risk in a highly developed jurisdiction.
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Jaffey, Peter. "The Restitutionary Conditional Transfer Analysis and the Death of Contract." Edinburgh Law Review 2, no. 1 (January 1998): 23–55. http://dx.doi.org/10.3366/elr.1998.2.1.23.
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There is an important distinction in the law of restitution between a claim for restitution for unjust enrichment by subtraction, where the plaintiff has made a transferto the defendant that is non-voluntary, and a claim under the benefit principle for reasonable paymentfor a benefit conferred. The benefit principle has a limited scope ofapplication, because generally payment for benefits conferred is governed by the law of contract. The restitutionary conditional transfer analysis, by mischaracterising a transfer made subject to a condition as an example ofsubtractive restitution, and treating performance ofa contract as a conditional transfer, has the perverse effect ofimporting the benefit principle into contract law. This subverts the remedial rules ofcontract law by allowing the court to assess a reasonable payment for work done rather than relying on the contract to determine the appropriate liability. The claims on contractual termination that are regarded as restitutionary— the quantum meruit for work done and the claim for repayment of a pre-payment— can be explained without reference to the conditional transfer theory. The claim for repayment of a pre-payment should be limited to cases of complete failure of consideration, which should be understood to mean complete absence ofreliance by the defendant on the contract, not complete absence ofbenefit to the plaintiff.
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Amayreh, Osama Ismail Mohammad, Izura Masdina Mohamed Zakri, Pardis Moslemzadeh Tehrani, and Yousef Mohammad Shandi. "The Principle of Good Faith in the Palestinian Civil Code Draft and Its Role in Maintaining Economic Contractual Equilibrium at the Pre-Contracting Phase." Journal of Politics and Law 12, no. 3 (August 23, 2019): 113. http://dx.doi.org/10.5539/jpl.v12n3p113.
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The jurisprudential and judicial legal trend tends to apply the principle of good faith at the pre-contracting phase as one of the most substantial principles governing this phase, since it is inconceivable that the parties are to negotiate in bad faith, and then must implement the contract in good faith, in accordance with the traditional legal rule that “fraud spoils everything it touches”. However, the Palestinian legislature has ignored enacting legal provisions obliging the parties to abide by the principle of good faith in the pre-contracting phase causing a legislative deficiency in the legislative remedies of the subject of good faith in the pre-contracting phase. This paper seeks to prove that replacing a provision that requires good faith in negotiations with the provisions of tort liability causes many legal problems. To prove this, the legal provisions should be analysed which would also include determining the definition of the principle of good faith, and the function of that principle in achieving contractual equilibrium and the legal basis for this principle at the stage of negotiation which should also be analysed. Moreover, a comparative analytical approach with the French civil code is used to illustrate the Palestinian legislative deficiencies and the need to legislate a legal article which obligates the negotiating parties to behave in good faith, as this has become an unavoidable reality that should be dealt with to contribute to the stability of civil and commercial transactions. As such, the legal article should also specify the compensation to be claimed.
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Kratenko, M. V., and O. J. Luik. "Modern Concept of Indemnity Insurance and Prospects for Its Implementation in Russian Law." Вестник Пермского университета. Юридические науки, no. 50 (2020): 762–86. http://dx.doi.org/10.17072/1995-4190-2020-50-762-786.
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Introduction: the division of insurance into indemnity insurance and insurance of fixed sums is as common in European legal doctrine as the differentiation between property and personal insurance in Russian law. The article investigates the functions and main features of indemnity insurance and modern trends in legal regulation of this type of insurance. Purpose: to demonstrate the evolution of the compensation insurance model, caused, among other things, by the penetration of the pro-consumer approach in insurance law; to assess the current state of Russian legislation on insurance contract and the proposals for its reform (formulated in Draft revision of Chapter 48 of the Civil Code) from the perspective of the indemnity insurance model. Methods: the authors apply a comparative legal research method to the legislation and doctrine of Russia, Estonia and other EU member states, model acts of insurance law (Principles of European Insurance Contract Law[1]), and also use methods of retrospective analysis. Results:the authors conclude that the indemnity insurance model is still based on long-established principles (necessity of insurance interest, good faith, etc.), although their interpretation may change over time. In addition, the strengthening of pro-consumer ideas has a significant impact on contractual relationship in indemnity insurance: the standard of requirements to the policyholder (insured person) and his liability for breach of contractual duties have been softened, while the level of requirements to the insurer as a professional subject is increasing. This is reflected in formalization of the information duty of the policyholder at the pre-contractual stage, replacement of the all-or-nothing principle by the principle of proportionality when imposing sanctions on the policyholder, including mandatory testing for the causal link between the breach of contract and materialization of risk or increase in damage. It is concluded that the Russian legislation on insurance contract requires a conceptual reform, including through the consistent introduction of the proportionality principle in all cases when sanctions are applied to the policyholder.
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Borana, Mustafaraj. "Modern legal systems and the principle of “Culpa in Contrahendo”: A review of the Albanian model of pre-contractual liability on a Roman-Germanic model reference." Academicus International Scientific Journal 19 (March 2019): 80–94. http://dx.doi.org/10.7336/academicus.2019.19.06.
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von Bar, Christian. "Communication on European Contract Law: Joint Response of the Commission on European Contract Law and the Study Group on a European Civil Code." European Review of Private Law 10, Issue 2 (April 1, 2002): 183–248. http://dx.doi.org/10.54648/408350.
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This joint response of the Commission on European Contract Law and the Study Group on a European Civil Code to the European Commission's Communication on European Contract Law outlines the difficulties confronting businesses and consumers in ascertaining foreign private law and the economic ramifications of legal diversity for the EU internal market. It demonstrates the limitations of freedom of choice of law and private autonomy and identifies inescapable distortions of competition. Considering the inextricable relevance of non-contractual liability and matters of property law, the response urges that measures in the field of contract law be contemplated only as part of a broad systematic view of European patrimonial law. To overcome manifest problems of legal diversity, the joint response rejects leaving further development to market forces (Option I). Endorsing Option II, it advocates further work in formulating Principles of European patrimonial law of the type which the Commission has published and the Study Group is extending — both for their own sake as 'soft law' and as a pre-requisite for possible future legislation. Improving the quality of existing Community law (Option III) is considered desirable, but inadequate as a self-standing objective. The response concludes with a potential phased plan towards harmonising core areas of private law (Option IV).
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Lorenz, Werner. "Reform of the German Law of Breach of Contract." Edinburgh Law Review 1, no. 3 (May 1997): 317–44. http://dx.doi.org/10.3366/elr.1997.1.3.317.
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This paper, first presented on 21 October 1995 at a joint seminar of the Scottish Law Commission and the Faculty of Law, University of Edinburgh, on the subject of breach of contract, considers the proposed reforms of German law in this area. The paper first surveys some of the problems of the existing law, highlighting its lack of a unitary concept of breach, gaps with regard to liability for breach of pre-contractual duties and contract modification owing to change of circumstances, difficulties arising from the special treatment of sales contracts and contracts for work and labour, and the mutual exclusivity of rescission and damages. Many difficulties arise from the operation of the law of prescription in the field. It is observed that the Vienna Convention on International Sales of Goods was ratified by Germany in 1991, making it desirable for reform to be consistent with the Convention. The reform proposals put forward in 1992 include a unitary concept of breach, modification of the fault principle, priority for specific implement, adjustment of the rules on termination to permit cumulation with damages and restitution, and changes with regard to the law of sales and contracts for work and labour. If implemented these will bring the German Civil Code into line with case-law developments as well as those in the international law of sales.
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Krasyukov, A. V. "Tax obligation fulfillment." Law Enforcement Review 5, no. 4 (January 6, 2022): 135–47. http://dx.doi.org/10.52468/2542-1514.2021.5(4).135-147.
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The subject. The article is devoted to the study of the mechanism of tax obligation fulfillment. The author established that there are several points of view in understanding the legal essence of the fulfillment of an obligation in Russia and abroad: 1) contractual theories (the general contractual theory, the theory of a real contract, the limited contractual theory); 2) the theory of target impact; 3) the theory of real impact.The purpose of the article is to determine the legal essence of tax obligation fulfillment, to study the concept of the tax obligation fulfillment, the mechanism for exercising subjective rights and obligations, and the criteria for the proper fulfillment of a tax obligation.The methodology. The author uses general and specific scientific methods of scientific research: observation, systemic-structural, dialectical, analysis, comparative jurisprudence and others.The main results, scope of application. There are two sides of the tax obligation fulfillment: legal and factual. From an actual point of view, the tax obligation fulfillment is a set of operations by its parties with the object of the obligation. As a result, the object of the obligation must pass from one owner to another. From a legal point of view, the tax obligation fulfillment always represents the realization of its content through the exercise of rights and the fulfillment of obligations.The author believes that the tax obligation fulfillment should not be equated with the fulfillment of the obligation to pay tax, since not every obligation is executed through the payment of tax. In this regard, a situation may arise when the obligation is properly fulfilled by the debtor, and the creditor does not receive the property grant (for example, if a loss is received at the end of the tax period).The mechanism of the implementation of subjective tax rights and the fulfillment of obligations is a certain system of legal means and algorithms of behavior that allow to determine the appropriate size of the claim of a public law entity on the taxpayer's property and ensuring the transfer of the monetary is equivalent to this economic benefit to the budget system. This mechanism is a set of algorithms for the behavior of subjects of tax liability, defined by law, using specific legal means. As such means, depending on the party of the tax obligation, the law provides, for example, a tax return, a requirement to pay tax, etc. The mechanism of exercising subjective rights and fulfilling obligations includes the following stages: 1) pre-implementation; 2) procedural implementation; 3) actual implementation; 4) protection of the violated right.The author identifies five criteria for the proper fulfillment of a tax obligation: 1) the proper subjects of execution; 2) the proper place; 3) the proper time; 4) the proper object; 5) the proper way.Conclusions. The legal essence of the tax obligation fulfillment can be characterized as a transaction between its parties, aimed to mutual termination and the emergence of the rights of its parties. In order to protect the rights of bona fide taxpayers the author proposes to enshrine in tax legislation a ban on contradictory behavior in the process of fulfilling a tax obligation.
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Брылякова, Екатерина Станиславовна, and Тамара Викторовна Шепель. "Institute for assurances and its implementation in the penal system in the framework of the Federal Law of 05.04.2013 No. 44-FZ “On contract system in procurement of goods, works, services for state and municipal needs”." Vestnik Kuzbasskogo instituta, no. 2(43) (June 22, 2020): 162–70. http://dx.doi.org/10.53993/2078-3914/2020/2(43)/162-170.
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Статья посвящена анализу нового института гражданского права «заверения об обстоятельствах», нашедшего легальное отражение в гражданском законодательстве РФ только после принятия Федерального закона РФ от 08.03.2015 № 42-ФЗ «О внесении изменений в часть первую Гражданского кодекса Российской Федерации». При этом с появлением данного института возникла полемика относительно его правовой природы и отнесения к институту преддоговорной ответственности как его разновидности или как одной из гарантий обязательственных правоотношений. Актуальность темы обусловлена еще и анализом возможности реализации института заверений об обстоятельствах в контексте Федерального закона от 05.04.2013 № 44 «О контрактной системе в сфере закупок товаров, работ, услуг для обеспечения государственных и муниципальных нужд» в части защиты интересов заказчиков и одного из элементов антикоррупционной составляющей. Ряд правоприменителей категорически не допускают возможности реализации исследуемого института в контрактной системе. Кроме того, в правоприменительной сфере возникает дискуссионный вопрос относительно интерпретации заверений об обстоятельствах и их применении в обязательственных правоотношениях. В статье предпринята попытка определить правовую природу института заверений об обстоятельствах и ответственности за недостоверные заверения, а также обосновать возможность его реализации в контрактной системе в сфере закупок товаров, работ и услуг для обеспечения государственных и муниципальных нужд, в том числе для нужд уголовно-исполнительной системы. This article is devoted to the analysis of a new institution of civil law “assurances of circumstances”, which was legally reflected in the civil legislation of the Russian Federation only after the adoption of the Federal law of the Russian Federation from 08.03.2015 № 42-FZ “On amendments to part one of the Civil code of the Russian Federation”. At the same time, with the appearance of this institution, there has been a lot of controversy regarding its legal nature and the attribution to the institution of pre-contractual liability as its variety or as one of the guarantees of legal obligations. The relevance of the topic due to the analysis of the feasibility of the Institute for assurances in the context of the Federal law of 05.04.2013 № 44 “On contract system in procurement of goods, works, services for state and municipal needs” in terms of protecting the interests of customers and one of the elements of the anti-corruption component. A number of law enforcement agencies categorically do not allow the possibility of implementing the research Institute in the contract system. In addition, in the law enforcement sphere, there is a debatable issue regarding the interpretation of assurances about circumstances and their application in legal relations of obligations. The article attempts to understand the concept and legal nature of the institution of assurances about circumstances and to justify the possibility of its implementation in the contract system in the field of procurement of goods, works and services for state and municipal needs, including for the needs of the penal system.
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Lyall, Andrew. "Traditional Contracts in German East Africa: The Transition from Pre-Capitalist Forms." Journal of African Law 30, no. 2 (1986): 91–129. http://dx.doi.org/10.1017/s0021855300006513.
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The material which forms the subject matter of this article constituted a chapter of a PhD thesis presented to London University in 1980. The thesis was based largely on the answers to Kohler's questionnaire which was distributed by the German colonial authorities throughout what was then German East Africa in 1909. A recent article in theJournal of African Lawdescribes these questionnaires in detail. Bibliographical references in the following text to the answers to the questionnaires follow the numbers assigned to them by Ankermann (1929) and used in the list in Redmayne and Rogers' article. Some answers were published at the time and these are referred to in the same way as normal bibliographical entries Some use has also been made of Post's earlier questionnaire which, together with the answers, was published under the editorship of Steinmetz (1903). Post's questionnaire was written in 1895 and distributed throughout the German colonies. The thesis dealt with land tenure and contract and so covered the field of the answers in the questionnaires dealing with those topics. It also set out a typology of African societies at the time the questionnaires were distributed, based on what could be discovered of their economic and social relations. As it turned out this typology proved rather more useful in establishing connections between economic relations and forms of land tenure than it was in establishing connections with such relations and contractual liability.
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Ikonomi, Ergysa, and Jonada Zyberaj. "“Bona Fides” Principle’s Value in Pre-Contractual Liability." Academic Journal of Interdisciplinary Studies, October 1, 2013. http://dx.doi.org/10.5901/ajis.2013.v2n9p481.
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Shvarts, Larisa V., and Elizaveta S. Deriabina. "On the Issue of Pre-Contractual Liability Qualification." Theoretical and Applied Law, no. 3(9) (September 2021). http://dx.doi.org/10.22394/2686-7834-2021-3-36-41.
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The article is devoted to the study of the problem of the protectability of literary works and their components, expressed in the application of the doctrine of the protected form and unprotected content of a literary work as the main concept in domestic legislation and judicial practice. Within the framework of this article, the distinguished legally significant elements under Russian law, the criteria for their protection are analyzed. The author analyzes the influence of the teachings of I. G. Fichte on the protected form and unprotected content on the provisions of legislative acts regulating copyright protection, as well as cases of granting legal protection based on the criterion of the author’s creative work, for example, in relation to such elements of a literary work as the name and character.
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"Unfair Behavior as the Basis of Pre-Contractual Liability." Rossijskoe pravo onlajn, 2018. http://dx.doi.org/10.17803/2542-2472.2018.8.4.071-077.
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"Problematic Issues in Pre-Contractual Liability: Doctrinal Approaches and Court Practice." LEX RUSSICA (РУССКИЙ ЗАКОН), 2018. http://dx.doi.org/10.17803/1729-5920.2018.143.10.098-105.
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Timofeeva, D. E. "The concept and essence of pre-contractual liability in Russian legislation." SCIENTIFIC DEVELOPMENT TRENDS AND EDUCATION, 2020. http://dx.doi.org/10.18411/lj-05-2020-218.
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Dziedzic, Magdalena. "Liability in Polish law for infringement of the pre-contractual obligation to inform." Studia Prawnicze / The Legal Studies, 2018, 153–68. http://dx.doi.org/10.37232/sp.2018.3.7.
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In contemporary contract and consumer law, obligations to inform are an example of instruments (protective ones) which imposes on business entities a duty to make a statement of knowledge (a representation), the content of which is determined by regulations and the purpose of which is to aid the consumer in taking a well-informed, rational decision. Appropriate regulations referring to liability for failing to carry out this obligation to inform aim to maintain optimal trust between the contracting parties and, as a result, lead to a balance in the parties’ position, at the same time upholding the principle of the freedom of contract. In accordance with the fundamental assumption in European consumer law, one’s liability towards a consumer should meet the criteria of both efficiency and proportionality, which means that one should not strictly consider such liability purely formally, i.e., as maintaining an economic balance between the parties. The sanction the company shall incur is to serve the actual satisfaction of the interests of the consumer, and not only to make a profit. Additionally, the sanctions for neglecting the obligation to inform are expected to encourage companies to comply with them. Neglecting this obligation to inform in the pre-contractual phase may take the form of not providing information which is required and explicitly defined by law or providing incomplete information. A large amount of detail in determining a business’s responsibility is presumedto guarantee the consumer knowledge of his/her rights and to enable him/her to evaluate the risks resulting from entering into a particular transaction. One must not, however, ignore the fact that providing excessive, thus illegible, information must be treated equally to non-disclosure of such information, which may result in infringement of the aforementioned regulations. Neglecting the obligation to inform may also arise in such a case where the consumer is not provided with a particular piece of information, despite the lack of a definite legal basis in this regard – such as a detailed regulation contained in an act – but such a duty would result from a general loyalty duty between the contracting parties. In the beginning, it should be noted that the liability for an infringement of the pre-contractual obligation to inform is characterised by system heterogeneity. In particular, it refers to the distinct consumer protection regime. It is very often the case that depending on the contractor’s status (professional or nonprofessional) the legal consequences of failing to inform or improperly informing are framed in different ways. One must bear in mind the difference between solely the failure to inform or to improperly carry out the pre-contractual obligation to inform (pursued within pre-contractual liability, fundamentally according to an ex delicto regime) and the consequences arising from the content of the delivered information, i.e., the guarantee of definite elements in the legal relationship of an obligatory nature (assigned to the classic liability in an ex contractu regime). The subject of civil liability for the infringement of duties to inform can be analysed from two perspectives: firstly, from an economic point of view, i.e., whether for the aggrieved party and for the market at large it would be more favourable for the infringement of the duty to inform to be pursued within an ex contractu or ex delicto regime, and secondly, from the perspective of the theory of law, whether for the system of contract law it would be better for this liability to be pursued within an ex contractu or ex delicto regime. In response to the second question, the position of academics is that the liability for the violation of trust due to failing to properly inform the consumer should be pursued in an ex delicto system in order to maintain the internal cohesion of contract law.
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António, Isa Filipa. "A fase de formação dos contratos públicos: breves notas sobre o contencioso pré-contratual." Revista de Direito da Administração Pública 1, no. 2 (December 10, 2019). http://dx.doi.org/10.47096/redap.v1i2.194.
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<p>RESUMO: A entidade adjudicante encontra-se vinculada a um leque de deveres, regras e princípios na fase de formação de contratos públicos. O desvio ao cumprimento às legítimas causas de não adjudicação e aos princípios norteadores da contratação pública, como o da concorrência, imparcialidade, não discriminação em razão da nacionalidade e interesse público conduz à responsabilidade pré-contratual da entidade adjudicante, destinada à tutela ressarcitória do privado (interesse contratual positivo, interesse contratual negativo e perda de chance). No contexto pré-contratual assumem uma especial pertinência as questões sensíveis acerca da tutela da confiança do particular, alteração anormal das circunstâncias e do reequilíbrio financeiro do contrato. Por último, a questão da “urgência” na fase pré-contratual, é assegurada pelo “contencioso pré-contratual”, de carácter urgente, previsto nos artigos 100.º a 103.º-B, do Código dos Contratos Públicos.</p><p>PALAVRAS-CHAVES: Contratos Públicos; Fase de Formação do Contrato Público; Contencioso Pré-contratual Urgente; Responsabilidade pré-contratual das entidades adjudicantes.</p><p> </p><p> </p><p> </p><p>ABSTRACT: The contracting authority is bound by a range of legal duties, rules and principles at the formation of contract phase. The disrespect of the compliance of these rules and of the legitimate causes of non-award and the public procurement´s guiding-principles (competition, impartiality, non-discrimination on grounds of nationality and public interest) leads to the contracting authority's pre-contractual liability for the private´s financial compensation (positive contractual interest, negative contractual interest and “loss of chance”). In the pre-contractual context, sensitive issues are of particular relevance: the protection of the private´s trust, abnormal change in circumstances and the financial rebalancing of the contract. Finally, the issue of “urgency” at the pre-contractual phase is ensured by the urgent “pre-contractual litigation” provided in articles 100.º to 103.º- B, of the Public Procurement Code.</p><p>KEYWORDS: Public Contracts; Formation of the Public Contract Phase; Urgent Pre-contractual Litigation; Pre-contractual procedure´s liability of contracting authorities.</p>
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"Pre-Contractual Liability: The Novelties into the Civil Legislation and Judicial Practice." LEX RUSSICA (РУССКИЙ ЗАКОН), 2017. http://dx.doi.org/10.17803/1729-5920.2017.126.5.136-147.
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Magri, Geo. "Pre-contractual liability in italy between tort and contract law. Some comparative remarks." Revista Brasileira de Direito Civil 23, no. 01 (2020). http://dx.doi.org/10.33242/rbdc.2020.01.005.
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Li, Xiaoyang. "The Legal Status of Pre-Contractual Liability: Contrasting Responses from German and English Law." SSRN Electronic Journal, 2017. http://dx.doi.org/10.2139/ssrn.3065761.
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Andò, B. "The Mélange of Innovation and Tradition in Maltese Law: The Essence of the Maltese Mix?" European Journal of Comparative Law and Governance, 2013, 1–21. http://dx.doi.org/10.1163/22134514-45060002.
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The aim of this paper is to provide valuable insights into the Maltese legal system with a special focus on private law. The assumption is that this legal system is the by-product of the “mixing” of innovation and tradition, resulting from the interaction of English law and continental law. A major role in the development of the system is played by courts. Some examples (moral damages and pre-contractual liability) are considered which highlight the importance of the function displayed by Maltese judges.
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Popov, Yuri. "Преддоговорная ответственность: culpa in contrahendo, promissory estoppel, деликт (Pre-contractual Liability: Culpa in Contrahendo, Promissory Estoppel, Delict)." SSRN Electronic Journal, 2014. http://dx.doi.org/10.2139/ssrn.3480078.
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Moholia, Daniel. "Exploiting the Future: The Evolution of Child Labour Laws in Ontario from the Pre-Industrial Period to the 1930s." Waterloo Historical Review 9 (April 25, 2017). http://dx.doi.org/10.15353/whr.v9.148.
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Child labour was not uncommon in the pre-industrial period, yet with industrialization demand for child labour in workplaces other than family farms and contractual apprenticeships rose. In the context of factories, shops and mines, employers had no legal liability for the health and wellness of the children they employed. Legislation emerged to fill this void as early as the 1880s, yet it was poorly enforced. It would only be with the modernization of industry, the rise of wages for skilled labourers, and increasing public consciousness about the value of education that child labour would decrease across the province in the early 20<sup>th</sup> century.
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"ADAPTATION OF THE LEGAL INSTITUTION OF PRE-CONTRACTUAL LIABILITY (CULPA IN CONTRAHENDO) IN THE RUSSIAN BUSINESS LAW: PROBLEMS OF THEORY, LAW ENFORCEMENT PRACTICE AND THE ORGANIZATION OF EDUCATIONAL PROCESS." Courier of the Kutafin Moscow State Law University, 2018. http://dx.doi.org/10.17803/2311-5998.2018.43.3.079-087.
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