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Culpa in contrahendo: Difference between revisions
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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. | 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]] | We have seen it argued, for example — in the context of a simple [[OneNDA|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]]<ref>The [[JC]]’s home-baked principle of ''[[non dixi quod factum ita]]'' also comes into play</ref> — 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. | |||
Firstly, you either ''do'' have a contract or you ''don’t.'' The use — or risk? — of ''contrahendo'' to contractual [[negotiation|negotiations]] that are not concluded surely cannot be solved by resort to a non-existent agreement. Nor, if the point of ''contrahendo'' is to undo the vicissitudes of an oppressive contract one ''has'' signed, only under unjust misapprehension, then sticking something ''in'' that oppressive contract is hardly going to help either, is it. And anyway, when all you are promising is o keep another fellows secrets to yourself, just what kind of additional agreement would you hope — or fear — the effects of? | Firstly, you either ''do'' have a contract or you ''don’t.'' The use — or risk? — of ''contrahendo'' to contractual [[negotiation|negotiations]] that are not concluded surely cannot be solved by resort to a non-existent agreement. Nor, if the point of ''contrahendo'' is to undo the vicissitudes of an oppressive contract one ''has'' signed, only under unjust misapprehension, then sticking something ''in'' that oppressive contract is hardly going to help either, is it. And anyway, when all you are promising is o keep another fellows secrets to yourself, just what kind of additional agreement would you hope — or fear — the effects of? | ||