3. Culpa in Contrahendo154

(a) The Doctrine Devised by Jhering

Culpa in contrahendo (fault in the formation of contract) was probably Rudolph von Jhering's most celebrated legal 'discovery'.¹⁵⁵’ It was a product of the then prevailing method of conceptual 'construction'.

Jhering himself at one place in his article acknowledged that 'a most violent effort'¹⁵⁶ was required to squeeze the Roman sources into the doctrinal framework devised by him. Characteristically it was only towards the end of his study that he turned to Prussian law. Here he found 'a very surprising confirmation of my ideas'¹*⁷ in § 284 I 5 prALR which read: 'What is right with regard to the degree of fault for which [a debtor! is responsible when performing his contractual obligation is also applicable if one of the contracting parties has neglected the duties incumbent on him in concluding the contract.' This provision was based on Natural law theory.¹⁵⁸ Jhering's culpa in contrahendo¹⁵⁹ was more narrowly conceived in two respects, (i) It only related to cases where one of the contracting parties carries out his obligations under what he presumes to be a valid contract whereas that contract has, in reality, not been concluded or turns out to be void; cases, in other words, where reliance is placed on the mere semblance of a contract. Thus, somewhat paradoxically, contractual diligence is owed in a situation where there was no contract, (ii) Liability was confined to the 'negative interest'.¹⁶”

^,s* Tomasz Giaro, 'Culpa in contrahendo: Eine Geschichte der Wiederentdeckungen', in Falk and Mohnhaupt (n. 20) in preparation.

¹⁵⁵ Rudolph von Jhering. 'Culpa in contrahendo, oder Schadensersatz bei nichtigen oder nicht zur Perfektion gelangten Verträgen', (1861) 4 JhJb 1 ff.; cf. Hans Dolle, 'Juristische Entdeckungen', in Verhandhutgeit des 42.

Deutsche» Juris· tentages, vol. ii (1959), pp. B 1 ff.

·» (1861) 4 JhJb 92. ¹⁵⁷ (1861) 4 JhJb 44, 50 f.

¹⁵⁸ See Bvoung Jo Choe, Cnf/w in contrahendo bei Rudolph von jhering (1988), 203 ff.

^1,9 On which see Dieter Medicus, 'Zur Entdeckungsgeschichte der Culpa in Contrahendo’, in Festgabe filr Max Kaser (1986), 169 ff.; Giaro (n. 154) sub 1.

wo _e g _f obligations (_n. 25) 243 f.

(b) The Position of the BGB

The Imperial Court accepted culpa in contrahendo in this narrow version.^[235] So did the BGB. But the Code did not contain a general provision endorsing Jhering's doctrine; it dealt with the individual situations pinpointed by him in a number of special provisions.^[236] These provisions could be regarded as emanations of the idea of culpa in contrahendo, even though in some of them the requirement of fault had been dropped^[237] (Jhering himself had seen the somewhat fictitious nature of a fault requirement^[238] and had subsequently pleaded for an 'objective' type of liability).^[239]'’ It was easy enough for the Imperial Court—in tune with prevailing doctrine—to accept the new situation: by applying the provisions of the new Code, the Court could effectively continue along the path mapped out under the ins commune. A doctrine of culpa in contrahendo was no longer required, since a generalized liability for fault committed in the process of contracting was conceivable only if the requirements for delictual liability had been met (i.e., in particular, infringement of one of the objects of legal protection listed in § 823 I BGB).^[240]

(c) The Emergence of the Modern Liability for Culpa in Contrahendo But this is not the whole truth. Before 1900, the more broadly conceived culpa in contrahendo £ la Natural law had, of course, been applied (though not under that name) in cases decided according to Prussian law. Apart from that, however, it had also led a crypto-existence under the ins commune.

Thus, the liability of a banker for bad advice concerning the purchase and sale of negotiable instruments had been based, by the Imperial Court, on a long-standing business relationship or on the fact that the advice given and the information provided had to be regarded as forming an 'integral part' of the (subsequent!) transaction.^[241] Here we have a liability for fault in the pre-contractual sphere in cases where a contract is subsequently concluded, and it appears disguised as a contractual liability. This type of reasoning was continued, and became increasingly more prominent, after the enactment of the BGB. Culpa in contrahendo continued to be redefined as culpa in solvendo in banking cases.^[242] Innkeepers were held liable for injuries sustained by their guests because they had tacitly guaranteed that the rooms in which the latter ate their meals did not contain a source of potential danger for their life and limb and property.^[243] Conclusion of the contract involving such guarantee was seen to have occurred already when the guest entered the inn, i.e. before he sat down and ordered his meal.^[244] Liability was imposed in a variety of other situations on the basis of fictitious agreements accompanying the main agreement, or preliminary to it,^[245] and contractual duties were taken to exist before the conclusion and after the completion of the contract.^[246] ^{^[247] In other cases the scope of pre-contractual liability was extended by a very liberal interpretation given to the requirement of 'fraud' contained in § 463 BGB: a seller was seen to have 'fraudulently concealed a defect' if he had not disclosed that he was uncertain about whether the object of the sale was defective, as a result of dry rot.¹'³ At the beginning of the second decade of the twentieth century the Imperial Court started to move more decisively in the direction oi recognition oi contractual liability in the pre-contractual situation: of a doctrine of culpa in contrahendi), in other words, which had hardly more than the name in common with the theory devised by Jhering.
The first landmark was the linoleum case that has been mentioned above.^1/4 In spite of the contractual cloak in which the Imperial Court still attempted to envelop the negotiations,^[248] ^{^[249] the Court now squarely focused on the negotiating process; a contract of sale, after all, had not subsequently been concluded in this case since the plaintiff had become 'seriously disturbed by the fall'. Nor had there been the semblance of a contract (as in the cases discussed by Jhering). Another landmark decision followed soon afterwards. In RG JW 1912, 743 one party to a contract had negligently failed to draw the other party's attention to certain circumstances which, as he should have known, were of major importance for the implementation of what the latter wished to achieve under the contract. Culpa in contrahendo A la Jhering, it was now argued, related to invalid contracts and it had been specifically regulated by the BGB. For cases of a valid contract the BGB did not contain a regulation. But it had also not rejected liability. There was, in the opinion of the Court, 'no sufficient reason' to differentiate between duties of disclosure existing before and after conclusion of the contract. The negotiations leading up to a contract and the contract itself had to be seen 'as a whole'. Good faith and the requirements of honest business dealings called for the imposition of liability even in cases of pre-contractual failure to disclose. For another few years, the Imperial Court continued to proceed in piecemeal fashion until, in 1918, the various threads of liability and clusters of cases were brought home under one doctrinal umbrella.¹"⁶ 'Liability for fault in the conclusion of a contract' is the programmatic headnote of RGZ 95,58. The original idea, according to which there was no doctrine of culpa in contrahendo under the BGB, had been turned on its head.^[250] ^{^[251]}
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Source: Zimmermann R.. Roman law, Contemporary law, European law. Oxford University Press,2004. — 113 p.. 2004

3. Culpa in Contrahendo154

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