| 英文摘要 |
This paper is intended to explore and establish a clear liability system of culpa in contrahendo with its remedies through the analysis of a variety of court cases announced by the courts in Germany, France, England, the US, Netherlands, Japan, etc. This paper points out that the foundation of culpa in contrahendo is based on the reliance theory. The cases handled by the courts in continental law countries are dealt with by English courts in the application of proprietary estoppel and promissory estoppel, with a similar result to the European courts. It is argued that the cases concerning personal injury that raises the liability of culpa in contrahendo in German law should be regulated by the law of tort. Where a person has no intention to enter into a contract while undergoing negotiation, he/she shall be held liable under both culpa in contrahendo and the law of tort. In the case of breaking off negotiations, the defendant is liable for reliance damages in principle, with expectation damages in exceptional cases. In the cases of mutual mistake (i.e., hidden discord) and those of contracts short of formative requirements, the defendant is liable for reliance damages. Nonetheless, the aggrieved party is entitled to claim specific performance or expectation damages where both parties of negotiation have reached an agreement on the essential contents of a contract, even if the formative requirements are lacking. In terms of article 245-1 of the Taiwan Civil Code, some revisions should have been taken due to its limited scope of the application over the culpa in contrahendo cases. For instance, it is unconvincing for this article to make a distinction between the non-existence and invalidity of a contract, with the latter not subject to the application of this article. Further, it is also untenable for the defendant to escape from the liability merely because the claimant is at fault in believing the validity of a contract. It is suggested that such provisions should be revised to cover more cases of culpa in contrahendo. |
