Culpa in contrahendo

Negotiation Anatomy™ →Go uptown Walk-away | Escalation | Algorithm | Heuristic | subject matter expert | Operationalisation | Playbook | Smart contract | Dead horse | Knife fight | 7 wastes | Cruddy legal advice Index: Click ᐅ to expand: Negotiation Negotiation hacks Contract Tell me more Sign up for our newsletter — or just get in touch: for ½ a weekly 🍺 you get to consult JC. Ask about it here.

“Culpa in contrahendo” — literally “fault in conclusion of a contract”, or for the more plainly minded, “negotiating in bad faith” is, we gather, a key concept in the civil law of contracts (you know, the odd continental way of doing things) in which the positive law sees a clear duty when negotiating — so before there is a contract — not to mislead or induce ones counterparty to act to his detriment before the contract is concluded.

Pedants like to observe there is no common law equivalent, but that is stretching things a little. Misrepresentation, the basic principles of equity and restitution, and the constructive imaginations of common law judges to ensure the plain common law is applied in such a way as to ensure little old ladies, Welsh hoteliers etc., don’t get the sharp end of the stick, mean that in practice the fellow who tries to insist upon, or deny, rights and obligations created thorough her own nefarious conduct, can expect fairly short treatment.