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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”,


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]].
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 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.


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.
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 Division|Queen’s Bench]] and [[Chancery Division|Chancery Divisions]] throughout the ages will ensure the plain [[common law]] is applied so as to ensure [[little old ladies]], [[Welsh hoteliers]] etc., don’t [[Anus matronae parvae malas leges faciunt|get the sharp end of the stick]].


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.  
In practice, the fellow who insists upon, or denies, duties created (or avoided) thorough her own nefarious conduct can expect short treatment should she come before an English court.


But — and knowing squarely nothing about the civil law precepts beyond what one can glean from Wikipedia — this strikes us as rather obtuse.  
Nevertheless, we saw it recently argued in relation to the simple, free, standard OneNDA, of all things — that its failure to disclaim the obligation to enter into a further agreements might come in handy in a [[civil law]] jurisdiction where the principle of ''culpa in contrahendo'' applies.


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.  
But — and knowing squarely nothing about the civil law beyond what one can glean from Wikipedia — this strikes us as rather obtuse.


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 [[OneNDA|cheeky little scallywags]] who would play knock-down-ginger at your door.
Firstly, you either ''do'' have a contract or you ''don’t.'' The use — or risk? — of ''contrahendo'' to [[Negotiation|negotiations]] that are not concluded surely cannot be solved by 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.


The [[JC]] likes a bit of knock-down-ginger, as you may know.
And anyway, when all you are promising to do is keep a secret, what kind of additional agreement would you hope — or fear — in any case? This is an NDA, for crying out loud. People don’t sue on NDAs.


===''Contrahendo'' as a [[Knee slide|knee-slide]]===
In its baffling, obscurant esoterism, ''culpa in contrahendo'' captures neatly what [[Legal eagle|legal eagles]] most love, and everyone else most despairs, about space they take up in the world.
In its baffling, obscurant esoterism, ''culpa in contrahendo'' captures neatly what [[Legal eagle|legal eagles]] love most about their place in the world, and everyone else despairs most about it. “I don’t know what that means, I do not care, and I don’t have the will to wrap my tiny mind around what this Latin contrivance might mean in the dim, purblind future of my commercial relationship,” a [[muggle]] will think, “But I am no fool. I can see this smug so-and-so ''does'' care, and isn’t going to let this go, and this godforsaken [[negotiation]] will carry on until he has his knee-slide.”


“''Culpa in contrahendo''? I don’t know what that means. Nor do I care. But life is too short, and the foreground too full of more pressing questions for me to wrap my tiny mind around than what this might mean in the dim, purblind future of my  commercial relationship,” a [[muggle]] will think, “But I am no fool. I can see this smug so-and-so ''does'' care, and isn’t going to let this go, and this godforsaken [[negotiation]] will carry on until he has his knee-slide.”
Precisely the kind of aggravating carry-on that the OneNDA was designed to end.
We suspect a lazy effort to chase away the [[OneNDA|cheeky scallywags]] who would play knock-down-ginger at your door.
The [[JC]] ''likes'' cheeky scallywags, and enjoys the odd round of knock-down-ginger, as you may know.
{{sa}}
{{sa}}
*[[Aleatory contract]]s, [[Synallagmatic]] obligations and the [[netting opinion]] as an ''objet trouvée''
*[[Aleatory contract]]s, [[Synallagmatic]] obligations and the [[netting opinion]] as an ''objet trouvée''
*[[OneNDA]] which doesn’t have a disclaimer of an [[agreement to agree]].
*[[OneNDA]] which doesn’t have a disclaimer of an [[agreement to agree]].
{{ref}}
{{ref}}

Latest revision as of 14:51, 26 September 2021

Negotiation Anatomy™


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“Culpa in contrahendo” — literally “the failure to select Jordan Henderson in the Euros”[1] 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 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 trusts — of the Queen’s Bench and Chancery Divisions throughout the ages will ensure the plain common law is applied so as to ensure little old ladies, Welsh hoteliers etc., don’t get the sharp end of the stick.

In practice, the fellow who insists upon, or denies, duties created (or avoided) thorough her own nefarious conduct can expect short treatment should she come before an English court.

Nevertheless, we saw it recently argued in relation to the simple, free, standard OneNDA, of all things — that its failure to disclaim the obligation to enter into a further agreements might come in handy in a civil law jurisdiction where the principle of culpa in contrahendo applies.

But — and knowing squarely nothing about the civil law 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 negotiations that are not concluded surely cannot be solved by 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 a secret, what kind of additional agreement would you hope — or fear — in any case? This is an NDA, for crying out loud. People don’t sue on NDAs.

In its baffling, obscurant esoterism, culpa in contrahendo captures neatly what legal eagles most love, and everyone else most despairs, about space they take up in the world.

“Culpa in contrahendo? I don’t know what that means. Nor do I care. But life is too short, and the foreground too full of more pressing questions for me to wrap my tiny mind around than what this might mean in the dim, purblind future of my commercial relationship,” a muggle will think, “But I am no fool. I can see this smug so-and-so does care, and isn’t going to let this go, and this godforsaken negotiation will carry on until he has his knee-slide.”

Precisely the kind of aggravating carry-on that the OneNDA was designed to end.

We suspect a lazy effort to chase away the cheeky scallywags who would play knock-down-ginger at your door.

The JC likes cheeky scallywags, and enjoys the odd round of knock-down-ginger, as you may know.

See also

References

  1. ↑ ©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.
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