Culpa in contrahendo

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“Culpa in contrahendo” — literally “the failure to select Jordan Henderson in the Euros” 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 trusts — of the Queen’s Bench and Chancery Divisions thoughout 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 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 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 — 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 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.

Contrahendo as a knee-slide

In its baffling, obscurant esoterism, culpa in contrahendo captures neatly what legal eagles most love, and everyone else most despairs, about their sainted place in the world.

“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 it 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.”

See also

• Aleatory contracts, Synallagmatic obligations and the netting opinion as an objet trouvée
• OneNDA which doesn’t have a disclaimer of an agreement to agree.