締約上過失的責任構成與救濟方法

The Liability of Culpa in Contrahendo and Its Remedies

本文以各國案例建構締約上過失之構成要件與救濟方法，期使締約上過失法則，具有清晰的責任構成體系。 締約上過失法則之理論基礎，求諸於信賴原則。歐陸法之締約上過失法則案例，在英美法上係以物權之禁反言及允諾之禁反言個案判斷之，二者在結論上並無重大差異。 在隱藏不合意致契約不成立，或契約欠缺法定方式而無效，加害人應負信賴利益之賠償責任。但於例外情形，被害人得請求履行契約或履行利益之損害賠償。 在無意願締約而從事締約協商時，加害人同時構成締約上過失責任及侵權責任。在無故中斷締約協商，加害人原則上僅賠償信賴利益，但例外應賠償履行利益。在締約過程中受害人之固有利益受侵害時，應適用侵權責任，無須適用締約上過失法則。

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.