Recovery of damages
"A contract, the performance of which is impossible, is void"—"void" being, in modern parlance, an unambiguous terminus technicus,[3500] it necessarily follows that the purchaser will not be able to avail himself of a contractual action {the actio empti) to claim what we would call his "positive" interest.
Nevertheless, the vendor may under certain circumstances be obliged to compensate the purchaser for his (reliance) damages.[3501] That was realized, first of all, by the natural lawyers, who merely applied the general principles of delictual liability to this situation. Fault, in their view, creates the obligation to make good any damage caused,[3502] and thus it is not surprising to find Pufendorf granting an action in case of negligence and dolus: if the vendor knew or could have known that he was unable to honour his obligation, he has to compensate the purchaser for "id quod interest ne ita sibi illuderetur". [3503] Nineteenth-century legal science rejected the generalized form of delictual liability developed by the natural lawyers and returned to the established principles of Aquilian liability.[3504] Both Savigny and Mommsen therefore confined the purchaser's claim to dolus.[3505] Culpa as such could not be recognized as an independent causa obligationis, whereas in case of fraud the actio doli was available. It was Rudolf von Jhering, with his famous "discovery" of culpa in contrahendo,[3506] who opened up a new perspective. He argued that the vendor could be liable for (as he termed it) the negative interest in case of pre-contractual negligence. According to Jhering, this form of liability was contractual in nature, and it is therefore amusing to see that he bolstered up his theory by referring to rules such as § 284 I 5 PrALR,[3507] emanations of the natural-law theories of delictual liability. § 307 BGB ("If a person, in concluding a contract, the performance of which is impossible, knew or should have known about the impossibility, he is obliged to compensate for any damage which the other party has sustained by relying upon the validity of the contract... ") has essentially codified Jhering's view,[3508] despite the fact that Windscheid[3509] had gone even further and postulated the same strict form of liability that was eventually adopted in the parallel situation of invalidity due to error.[3510]9.
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- Solutio Indebiti
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- Roman Law Terms with Letters H
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- DE CONDICTIONE INDEBITI.