Tăcerea este de aur? Despre îndatorirea de informare ca premisă a dolului prin reticenţă
Is silence golden? The duty to disclose information as a premise for fraudulent non-disclosure

Summary/Abstract: The issue of identifying a duty to disclose information when entering into a contract, in the absence of a particular legal or contractual obligation with this subject matter, marks a tension between two contrary tendencies. On one hand, the individualism under the auspices of which modern contractual regimes were developed requires that such duty should not exist – caveat emptor; on the other hand, there is an appreciable moral discomfort in allowing a party to profit from the ignorance of the other, a discomfort which is visible in the literature’s tendency of acknowledging a duty of disclosure for information that is material to the consent of the uninformed party. The tension also manifests at the level of economic analysis. Restricting the duty to disclose maintains information asymmetry and undermines the assumption that the contract is efficient. Expanding the duty jeopardizes investment in the production of valuable information. Nevertheless, economic analysis does offer realistic criteria for determining the domain of the duty to disclose. By using the economic analysis literature and models of comparative law, we argue in this paper that the duty to disclose information should be recognized, as a rule, if any of the following criteria is met: (i) the information is acquired casually (incidentally); (ii) the information is redistributive rather than productive; (iii) the costs of acquiring the information for the uninformed party would be manifestly and considerably greater than those of the informed party; (iv) there are reasons extrinsic to those of an economic nature, which require recognizing a duty to disclose.

• Details
• Contents