pre-contractual bad faith concept. expressions of the pre-contractual bad faith Cover Image
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Reaua-credintã precontractualã în cazul contractelor negociate, în noul cod civil si în dreptul comparat
pre-contractual bad faith concept. expressions of the pre-contractual bad faith

Author(s): Marius-Ioan Floare
Subject(s): Law, Constitution, Jurisprudence
Published by: Universul Juridic
Keywords: bad faith; contract; pre-contractual stage; lack of good faith; negotiations

Summary/Abstract: The new Romanian Civil Code (NCC) regulates the composition of the contracts both in the classical theory, applicable to most contracts, which are made up apparently from “the nothingness” based upon the acceptance without reservation of an already composed clear and accurate offer, and also in the exception case applicable especially to the complex contracts concluded as a result of certain negotiations. The pre-contractual period is comprised between the time of the first contracts concluded between the future participants in the negotiations and the time of expressing the final firm and accurate offer, which, by its simple acceptance, may result in the conclusion of the anticipated contract or the alternate time of giving up negotiations.. The stage named conventionally „pre-contractual” may include the conclusion of certain proper contracts, which should regulate the way of conduct of the negotiations and of the other preparations by the parties’ consent and in detail for the purpose of concluding the main contract, to decide the items upon which they have reached an agreement or to foreshadow the conclusion of the main contract. The pre-contractual stage was regulated under the NCC, as certain expressions of the pre-contractual bad faith were forbidden expressly and a general good faith obligation was established in the pre-contractual stage. The bad faith was defined as the knowledge of a person in relation to the unfounded nature of her claims, of the tortious or quasi-tortious nature of her actions or of the vices of her title, involving the direct or indirect intention to manifest herself in a prejudicial manner as compared to the legal interests and rights of another party and for the promotion of her own interests, which most times is disproportionate and damaging. The regulation of the NCC may deduce the existence of an obligation not to act in bad faith in the pre-contractual stage. The objectiveness of the pre-contractual bad faith in the prejudicial behaviors for the negotiations partners may result in the obligation to pay liquidated damages; however these positive sanctions shall not be the only consequences, as the particular and negative sanctions vary, among others, depending also on the conclusion or non-conclusion of the aimed contract. The way of approaching the problem of the pre-contractual bad faith is examined also in other law systems, besides the traditional references to the French civil law and to other Francophone systems which many times reached the same solutions as the NCC in a jurisprudential and doctrinaire way, and also the approaches of the Common Law systems and of the German civil law were examined.

  • Issue Year: 2012
  • Issue No: 03
  • Page Range: 99-146
  • Page Count: 48
  • Language: Romanian