Culpa in contrahendo: Difference between revisions

{{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 — not to say ''[[Constructive|trusts]]'' — of the [[Queen’s Bench]] and [[Chancery Division]]s thoughout the ages will ensure the plain [[common law]] is applied so 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]]

In practice, the fellow who insists upon, or denies, duties created (or not created) thorough her own nefarious conduct, can expect short treatment should she come before an English court.

Nevertheless, 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” — some might regard that as an unenforceable “[[agreement to agree]]” and quite unneeding of protection in the [[common law]]<ref>The [[JC]]’s home-baked principle of ''[[non dixi quod factum ita]]'' also comes into play here.</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, under unjust misapprehension, is sticking something ''in'' that oppressive contract going to help either.  

And anyway, when all you are promising to do is keep another fellow’s secrets to yourself, what kind of additional agreement would you hope — or fear — in any case? We suspect this phantom has been invoked in a lazy effort to chase away the cheeky little scallywags who would play knock-down-ginger at your door.

The JC likes a bit of knock-down-ginger, as you may know.