Culpa in contrahendo
Culpa in contrahendo ( Latin : culpability when concluding a contract ), often also abbreviated cic , describes the culpable breach of obligations from a pre-contractual (legal) obligation. The cic is one of the contractual claims .
Basics and development
The consequences of culpability when the contract was concluded were regulated for the first time in the Prussian ALR of 1794: “What is right because of the degree of guilt for which the contract is to be fulfilled also applies in the event that one of the contracting parties fulfills the obligations incumbent on him when the contract is concluded has neglected. "
However, Rudolf von Jhering , who wrote a treatise on it in 1861, is considered the developer of the principle of culpa in contrahendo . This dealt primarily with the issues of the liability of the mistaken after contestation, the liability of the representative without power of representation or the seller of a non-existent item. Taking into account a ruling by the Cologne Regional Court at the time , which had to decide the so-called "telegraph case", Jhering assumed, for example, that the person making the declaration could be seen to be at fault by inducing a misunderstanding. For the cases dealt with, the legal consequence of liability on the negative interest proposed by Jhering was anchored in the BGB .
Nevertheless, there was initially no standard that generally regulated pre-contractual breaches of duty. Since a legal loophole in the BGB was recognized in this, the case law filled it through the (further) development of the legal institute of "culpa in contrahendo".
The “counterpart” to the pre-contractual “culpa in contrahendo” is the culpa post contractum finitum . It records violations of subsequent obligations that only occur after the contract has been processed.
Content and examples
It involves the replacement of a non-contractual (contract-like) Trust damage . In special cases of a trust-building (business) contact, the claim arises from the construction of a legal obligation that does not already result from a contract or other legal regulations. This contact can arise from the start of contract negotiations, regardless of whether a contract is ultimately concluded or not. The legal dogmatic justification of the cic is that already in the pre-contractual area, the counterpart is given an increased opportunity to influence the legal interests of third parties. It is therefore assumed that there are increased protection and traffic safety obligations, the violation of which will make you liable for damages . For example, if a business consultant is entrusted by a potential client company with trade secrets during the acquisition phase , but no contract is subsequently concluded and the business consultant then publishes the business secrets of this interested party, this is a case of culpa in contrahendo .
In a fundamental decision, the BGH had emphasized that liability claims by third parties were basically only the parties directly involved in the intended contract and not their representatives or negotiators. Insofar as the case law permitted exceptions, these were limited to third parties involved in contract negotiations who, in addition to the negotiating party, were “particularly interested in a contract” or “had demanded special trust”. The BGH recognized a contradiction in these two clearly differing criteria for creating exceptions, which it resolved in such a way that today only the latter criterion can trigger the liability of one of those involved in the initiation of the contract.
But this institute is also important in more everyday situations. B. when strolling in the department store because the cleaning staff did not do their job properly ( lettuce leaf fall ) or because the sales staff improperly stored goods in a high rack (so-called linoleum roll case ), the department store operator is also contractually liable. In addition, tortious liability is of secondary importance. In tort law , however (unlike in the area of contractual compensation), the principal can exculpate himself from responsibility for the misconduct of the employees ( BGB).
This fact can be significant if the responsible employee cannot be specifically identified or does not even have the financial means to pay for the damage. The culpa in contrahendo is of particular importance where the contractual liability towards other liability institutions, in particular towards tort law, offers more extensive protection. The advantage lies above all in the area of the attribution of fault (no exculpation options for the liable party, see second example), as well as a presumption of this fault ( (1) sentence 2 BGB), which the other side must refute ( reversal of the burden of proof ). Pure financial losses are also covered by the further contractual obligations. (cf. in the first example above the special protection of trust).
Exceptionally, third parties can also be covered by the protection of culpa in contrahendo . This happens according to the rules of the contract with protective effect in favor of third parties .
Anyone who culpably violates a pre-contractual obligation is, like the violator of a contractual obligation, obliged to pay damages according to §§ 249 ff. BGB. Regardless of whether a contract was concluded later, the injured party can request to be placed as it would be without the breach of duty during the contract negotiations. If a contract had not been concluded at all if the other party had acted in accordance with their duties, the injured party can demand that the contract be reversed.
Culpa in contrahendo according to Swiss law
The culpa in contrahendo in Swiss law is the culpable violation of pre-contractual obligations. Your prerequisites are contract negotiations, the existence of a trust worthy of protection, a breach of duty as well as damage, causal connection and fault. The breach of duty in particular is derived from the principle of good faith and includes, among other things. a. the duty of serious negotiations.
By its nature, it is an independent basis of liability, which is located between the contract and the offense. In Switzerland , however, the cic has not yet found expression in the law. According to Swiss doctrine, the cic is a special form of trustworthiness . From a dogmatic point of view, the cic in Swiss law is to be assigned to the quasi-contractual claims, which means that the positive interest in trust has to be replaced, but the injuring party has the reasons for the reduction in accordance with Art. 44 OR and Art. 99 Para. 3 OR. While the Federal Supreme Court assumes a limitation period of 1 year (offense), teaching requires a 10-year limitation period (contract).
The presence of a cic also does not lead to the cancellation of the contract, but only to the consequences of damages. Anyone who wants to cancel the contract as an injured party must therefore invoke overreaching (Art. 21 OR), error (Art. 23 OR) or deliberate deception (Art. 28 OR).
- Tobias Ackermann: Risk allocations through the other content of the debt relationship: a contribution to the liability of the debtor according to § 276 Paragraph 1 Clause 1 BGB , Saarbrücken University, Saarbrücken dissertation 2010, Nomos, Baden-Baden 2011, ISBN 978-3-8329-6402- 3 .
- Jörg Benedict : Culpa in Contrahendo . Volume 1 (historical-critical part): Transformations of civil law - or on the history of trustworthiness (Jus Privatum, Mohr Siebeck, forthcoming); Volume 2 (dogmatic-critical part): Case report - or today's system of contractual liability (Jus Privatum, Mohr Siebeck, forthcoming)
- Rudolf von Jhering : Culpa in contrahendo or compensation for void contracts or contracts that have not been perfected , in: Jherings Jahrbücher = yearbooks for the dogmatics of today's Roman and German private law 4 (1861).
- Moritz Keller: Obligations and opening of the legal system. From the doctrine of culpa in contrahendo to the obligation to be considerate of §§ 311 Abs. 2 and Abs. 3 BGB (= writings on civil law. Vol. 35). Duncker & Humblot, Berlin 2007, ISBN 978-3-428-12517-3 (also: Gießen, University, dissertation, 2006/2007).
- Thomas Krawitz: Protection against contractual investments: on liability in the event of the failure of contract negotiations , University of Munich, dissertation, 2014, Duncker & Humblot, Berlin 2015, ISBN 978-3-428-54532-2 .
- Dominik Schäfers: The policyholder's pre-contractual obligation to notify and the general right to disrupt performance: at the same time to the system of liability for pre-contractual breaches of duty , Verlag Versicherungswirtschaft, 2014, University of Münster, dissertation, 2013, ISBN 978-3-89952-763-6 .
- Rudolf von Jhering : Culpa in contrahendo or compensation for void contracts or contracts that have not been perfected , in: Jhering's year books = year books for the dogmatics of today's Roman and German private law 4 (1861) 1 ff.
- Emmerich , in: Munich Commentary on the BGB, 7th edition 2016, Rn. 36
- Judgment of the Regional Court of Cologne of July 29, 1856, regarding liability for telegraphic letters, in: Zeitschrift für deutsches Recht 19 (1859) p. 459 ff.
- Martin Schermaier : The determination of the essential error from the glossators to the BGB (= research on the modern history of private law. Volume 29). Böhlau Verlag Vienna / Cologne / Weimar 2000, section 10, The error law discussion between the theory of explanation, trust and will , pp. 537-606 (540 ff.).
- BGHZ 126, 181.
- Medicus / Petersen , civil law according to claims , 25th edition, marginal no. 200 a + b.
- Emmerich , in: Munich Commentary on the BGB, 7th edition 2016, Rn. 185
- Emmerich , in: Munich Commentary on the BGB, 7th edition 2016, Rn. 196
- Federal court decision  ("Swissair" decision)
- David Schneeberger; culpa in contrahendo . Retrieved November 17, 2015.