''Culpa in contrahendo'' is a

Latin Latin (, or , ) is a classical language belonging to the Italic branch of the Indo-European languages. Latin was originally a dialect spoken in the lower Tiber area (then known as Latium) around present-day Rome, but through the power of the ...

expression meaning "fault in conclusion of a contract". It is an important concept in

contract law A contract is a legally enforceable agreement between two or more parties that creates, defines, and governs mutual rights and obligations between them. A contract typically involves the transfer of goods, services, money, or a promise to tran ...

for many civil law countries, which recognize a clear duty to negotiate with care, and not to lead a negotiating partner to act to his detriment before a firm contract is concluded. In

German contract law German contract law is found in the Bürgerliches Gesetzbuch, in both the "Allgemeine Teil" and the chapter on "Schuldrecht". It forms part of the general law of obligations. See also *Abstraktionsprinzip *Drittwirkung Contract A contract is ...

, § 311 BGB lists a number of steps by which an obligation to pay damages may be created. By contrast, in

English contract law English contract law is the body of law that regulates legally binding agreements in England and Wales. With its roots in the lex mercatoria and the activism of the judiciary during the industrial revolution, it shares a heritage with countries ...

, and many other common law jurisdictions, there has been stulted judicial acceptance of this concept. The doctrine of

estoppel Estoppel is a judicial device in common law legal systems whereby a court may prevent or "estop" a person from making assertions or from going back on his or her word; the person being sanctioned is "estopped". Estoppel may prevent someone from ...

has been mooted by academics as a good model, but judges have refused to let it be a sidestep of the doctrine of

consideration Consideration is a concept of English common law and is a necessity for simple contracts but not for special contracts (contracts by deed). The concept has been adopted by other common law jurisdictions. The court in ''Currie v Misa'' declared ...

, saying estoppel must be a shield not a sword, and calling instead for Parliamentary intervention.The English and Scottish Law Commissions invited Harvey McGregor to draw up a "Contract Code" (being a codification and fusion of English and Scots contract law), but neither country has adopted his 1993 recommendations. On the other hand, in the case of land,

proprietary estoppel Proprietary estoppel is a legal claim, especially connected to English land law, which may arise in relation to rights to use the property of the owner, and may even be effective in connection with disputed transfers of ownership. Proprietary est ...

effectively created obligations regardless of any pre-existing contract. In the

United States The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country primarily located in North America. It consists of 50 states, a federal district, five major unincorporated territorie ...

, however, courts have allowed

promissory estoppel A promise is a commitment by someone to do or not do something. As a noun ''promise'' means a declaration assuring that one will or will not do something. As a verb it means to commit oneself by a promise to do or give. It can also mean a capacity ...

to function as a substitute for the consideration doctrine. This movement was stimulated by the acceptance of the concept in section 90 of the first '' Restatement of Contracts''.

German law

Rudolf von Jhering Caspar Rudolph Ritter von Jhering (also Ihering) (22 August 1818 – 17 September 1892) was a German jurist. He is best known for his 1872 book ''Der Kampf ums Recht'' (''The Struggle for Law''), as a legal scholar, and as the founder of a ...

is credited with developing the ''culpa in contrahendo'' doctrine. Originally, according to the prevailing interpretation of the German Civil Code, there was no such legal doctrine. The courts saw a gap in the law and used the ''culpa in contrahendo'' doctrine to fill it. Since the 2001 reform of the law of obligations, ''culpa in contrahendo'' is provided for by statute. (§311(2) in connection with §§280(1) and 241(2) of the German Civil Code).

Belgian law

Article 1382 of the Belgian Civil Code is the general legal basis to pursue compensation for damage as a result of a ''culpa in contrahendo''.

References

{{Reflist *Rudolf von Jhering, “Culpa in contrahendo oder Schadensersatz bei nichtigen oder nicht zur Perfection gelangten Verträgen”, ''Jahrbüchern für die Dogmatik des heutigen römischen und deutschen Privatrechts'', vol. 4, 1861, pp. 1–3; reprinted in Rudolf von Jhering, ''Gesammelte Aufsätze'' (1881). Jhering argued that the "reliance measure" ought to be the proper one in "not quite" contracts, e.g. where there is a misunderstanding as to the terms of the contract. Contract law Latin legal terminology