ДУЖНОСТ МЕЂУСОБНОГ ОБАВЕШТАВАЊА И ПРАВНЕ ПОСЛЕДИЦЕ ЊЕНЕ ПОВРЕДЕ
DUTY TO INFORM AND LEGAL CONSEQUENCES OF BREACHING THIS DUTY

Summary/Abstract: In the globalized world, the one who is in possession of information also possesses the power. In legal relations, a better informed party has a better bargaining position and opportunity to adjust the terms of contracts to its own interests and needs rather than the interests of the other party or their mutual interests. Reliance on this advantage does not necessarily mean that it will be abused, for there is no general legal duty of disclosure of information during pre-contractual or contractual stage. Quite contrary, each contracting party should obtain relevant information about the intended legal transaction, whereas the omission to do so may be interpreted as willingly taking the risk of discrepancy between what has been intended and what actually is. The duty to disclose information during negotiation (as well as after the conclusion of the contract) may result from the characteristics of the contract, fiduciary relationship or the principle of good faith and fair dealing. Consequently, the omission to provide the other party with all relevant information may be sanctioned by giving the other party a chance to avoid the contract. In this paper, the author analyzes the validity of contract in light of mistake or fraud, caused by failing to comply with contractual information duties or their abuse. The author poses the question whether the starting premise that there is no generalized duty of providing or disclosure of information is still applicable in the world changed by globalization. The author focuses on vital needs of individuals, such as housing, health security, education or basic economic needs, which are no longer provided by the state but by the private actors. Owing to his financial and economic power, the provider is better informed than the other contractual party. Thus, should we adapt the rules on information duties in the process of contract formation to these new circumstances? Or, should we perhaps leave the rules unchanged, for they prove to be efficient in protecting true contractual will, free from every defect?

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