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Culpa in contrahendo: Difference between revisions
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{{a|negotiation|}}“[[Culpa in contrahendo]]” — literally “the failure to select Jordan Henderson in the Euros”<ref>©July 2021. This gag shall quickly grow old, as we who are left grow old, so enjoy what there is to enjoy of it — precious little, I grant — while you can.</ref> or, failing that, the “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, that odd Continental way of sorting out arguments) in which the positive law of places like Germany sees a clear duty when [[negotiating]] — so ''before'' there is a contract to sue under — not to mislead or induce one’s counterparty to act to its detriment before the contract is concluded. | {{a|negotiation|}}“[[Culpa in contrahendo]]” — literally “the failure to select Jordan Henderson in the Euros”<ref>©July 2021. This gag shall quickly grow old, as we who are left grow old, so enjoy what there is to enjoy of it — precious little, I grant — while you can.</ref> or, failing that, the “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, that odd Continental way of sorting out arguments) in which the positive law of places like Germany sees a clear duty when [[negotiating]] — so ''before'' there is a contract to sue under — not to mislead or induce one’s counterparty to act to its detriment before the contract is concluded. | ||
Pedants like to observe there is no [[common law]] equivalent, and while that may literally be true, in practice it is stretching things a little. [[Misrepresentation]], the basic principles of [[equity]] and [[restitution]], and the constructive imaginations of | Pedants like to observe there is no [[common law]] equivalent, and while that may literally be true, in practice it is stretching things a little. [[Misrepresentation]], the basic principles of [[equity]] and [[restitution]], and the constructive imaginations — not to say ''[[Constructive|trusts]]'' — of the [[Queen’s Bench]] and [[Chancery Division]] thoughout the ages will ensure the plain [[common law]] is applied in such a way as to ensure [[Little old ladies|little old ladies]], [[Welsh hoteliers]] etc., don’t [[Anus matronae parvae malas leges faciunt|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. | ||
We have seen it argued, for example — in the context of a simple NDA of all places — that a clause disclaiming “the obligation to enter into a further agreement” — to you and me known as an unenforceable “[[agreement to agree]]” and quite unneeding of such protection in the [[common law]] (the JC’s home-baked principle of ''[[non dixi quod factum ita]]'' also comes into play) — might come in handy in a civil law contract where the principle of ''culpa in contrahendo'' applies. But — and knowing squarely nothing about the civil law precepts beyond what one can glean from Wikipedia — this strikes us as rather obtuse. | We have seen it argued, for example — in the context of a simple NDA of all places — that a clause disclaiming “the obligation to enter into a further agreement” — to you and me known as an unenforceable “[[agreement to agree]]” and quite unneeding of such protection in the [[common law]] (the JC’s home-baked principle of ''[[non dixi quod factum ita]]'' also comes into play) — might come in handy in a civil law contract where the principle of ''culpa in contrahendo'' applies. But — and knowing squarely nothing about the civil law precepts beyond what one can glean from Wikipedia — this strikes us as rather obtuse. | ||