Contractual or Delictual? On the Character of Pre-contractual Liability in Selected European Legal Systems

Dominik Michoński



In this essay, the author aims to briefly analyze the character and application of the institutions which are functionally compared to culpa in contrahendo in four distinctly different legal systems, namely in English, French, German and Polish law by positioning them on the traditional contractual/ delictual liability axis. The author thereby hopes to gain a better insight into the essence of precontractual liability and aims to conclude by critically assessing the strengths and weaknesses of each system. The essay is structured into seven main parts: it begins with a short presentation of the institution’s pedigree and a brief description of model regulations, namely PECL and DCFR. The opening part is followed by an analysis of four national interpretations of culpa in contrahendo. The article ends with the author’s concluding remarks as to the character of pre-contractual liability.

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