1、 The Emergence and Development of Contracting Fault Liability Abstract: The Contracting Fault Liability as a civil compensation liability occurs when one party violates the precontractual obligations subject to bona fide principle and then the other party is to be entitled to the compensation for th
2、e damages to the reliance on its interest suffered thereby. The system of the contracting fault liability was put forward by a German jurist and was famed an important find of jurisprudence. Reviewing the history of liability for negligence in contracting, we can finds that case and theory play a ve
3、ry important role in its development. Introduction: In traditional contract law, contract rights and obligations between the parties is only kept in the establishment and performance of contracts completed period. If the contractual relationship did not exist or not set up, it implies no responsibil
4、ity. That is,” no contracts, no responsibility. So in the contract, if one sides contract is not set up, which implies the fact that there have to protect the interested parties who loss something. With this situation, the fault liability was come out. This article focuses on it. The Emergence and d
5、evelopment of contracting fault liability: It is generally agreed that the concept of fault liability have already came out in Rome law. There is a famous saying: contract is no longer the subject of the payment is void. At this point, if the buyer is in good faith and without negligence, in order t
6、o protect the security of transactions, in exceptional circumstances the buyer the right to appeal based on buyers to good faith litigation, the request to the seller for compensation for losses suffered due to an invalid contract. However, before the formation of the ancient Roman law, there is no
7、contractual obligation and Culpa complete system. The complete theoretical and institutional systematization of things was established in the modern times. It is proposed by the German jurist Garling. In the year of 1861, Jelling published in Volume IV of Contracting on the fault- Contract null and
8、void and damages before the establishment of the harmed in his “Garling doctrine Annual Report”. In the article, he pointed out that Germany took too much emphasis on the will of the general common law and the subjective will of the importance of party desired, but not enough to meet the business ne
9、eds. For example, offer or commitment is failed to convey, the person or the subject will affect the effectiveness of the contract, if the contract due to the fault of one of the parties and not established, the party at fault should the other party because of reliance on the establishment of contra
10、ct losses liability? Garling replied: the people who engaged in contracts were concluded, from a contractual obligation to trade outside the scope of the negative into a positive obligation on the lease area, which thus assume the primary obligation lies in contracting to be fulfilling the necessary
11、 attention. Protected by law, not just an existing contractual relationship, the contractual relationship is taking place should be included； otherwise the lease deal will be out, and out of protection. The parties created a contractual obligation, if such an effect because of legal obstacles to be
12、excluded when the obligation will be to produce damages. There will be a so-called contract is invalid persons, refers only to fulfill effect does not occur, non - that he did not have any effect. In a brief, the parties make the contracts meaningless because of their own reasons do not contract who
13、 believed its contractual right for the effective establishment of the relative should pay for the damage. 1 This is the Garling s Contracting negligence theory, it is known as the Law on the findings. Since the Jelling theory put forward the theory of contracting negligence, it is seriously concern
14、ed by the world. And then it carried out more extensive and in-depth and systematic research and it also increasingly by some countries, legislation or judicial practice to accept them. In the “German Civil Code times, the scholars begin to discuss it on the question of fault on the parties. Most of
15、 the drafters believes that contracting negligence theory of liability is not easy to accept and prescribed by a general principle, only in exceptional circumstances should be recognized. So, in 1900 the German Civil Code, the drafters of the treaty on the fault is not fully accepted the theory, onl
16、y in the wrong to withdraw (122), the right agent (179), from the outset the objective can not (307), etc. is limited adopted within the framework of this view, but the contracting negligence theory in the German judicial practice and doctrine have been developed rapidly and gradually formed a fine,
17、 large, complex and wide scope of application, the establishment of a generalized principle. In Japan, the jurisprudence has also acknowledged the responsibility of contracting negligence theory. In Japans Case to find the bases of the fault liability from the trust and the city real credit principl
18、e, so the scope of this responsibility extended to the following areas: (1) Unable to perform the contract from the beginning so that the contract does not hold or invalid； (2) The contract shall only remain in the preparation stage of negotiation； (3) Contract effective establishment of the situati
19、on. Contracting fault liability is an effective establishment of the situation of enough to matter if the targets were flawed and contractor who breach of contract. In Greece and Italy, contracting fault liability was concerned as a general principle. According to Greek Civil Code Article 197, it st
20、ipulates that: When consultations on the occasion of the conclusion of contracts, the parties should have obligation to follow the trading practices and good faith. The Italian Civil Code section 1337 provides a pre-negotiations and contractual responsibility, both in the process of negotiation and
21、conclusion of contracts, the parties should be based on the principles of good faith. In France, contracting fault liability has not been incorporated into the Civil Code. When a similar situation occurs, it will be handled in accordance with the tort law. But in recent years, the judicial practice
22、shows that the contract law principles of contract is invalid or does not hold the party at fault when the responsibility to prosecute cases occur from time to time, such as the preparation protocol protection. In the English and American laws, there is no contracting fault liability concept in hist
23、ory. But after Mansfield incorporated duty of good faith into their laws with widespread support since 1933, the common law admits contracting fault liability. In 1933, Fuller, scholar in the US, comes out with amends when damages trust in the contract laws published in the “Yale Law Review”. The pa
24、per was discussed in detail with the expected benefits, trust interests and the performance benefits. The United States Uniform Commercial Code, also confirmed the duty of good faith that is loyal to the fact. In there laws, the trust interests of the parties to the contract is a result of the trust
25、 each others promise to pay the price or charges. Can not go back on the promise is their laws to protect the interests of a principle of trust. Their laws requires the court in establishing trust in the interests of the compensation promised to people without regard to how the subjective meaning. O
26、nly consider the defendant as a promise, whether we can make a reasonable person to become trusted. CONCLUSION: We may draw a conclusion that contracting fault liability has become a integrated system according to the regulations made in many countries for it based on Garlings original theory. Compa
27、red with the original theory of Garling , there are a few developments. The first is the expansion of the scope. Contracting fault liability can not only be used for the beginning of contracting but also be applicable to the contract are recognized as invalid and be revoked when in breach of its offer to a valid offer and should bear responsibility for the case of contracting.
