PRAVNI ZAPISI • Year I • No. 2 • pp. 315-338
CULPA IN CONTRAHENDO: A METHODOLOGICAL EXPERIMENT
Prof. dr Stefanović Zlatko
Redovni profesor, Pravni fakultet Univerziteta Union u Beogradu
Pravni zapisi, No. 2/2010, pp. 315-338
Original Scientific Article
Negotiations; responsibility; methodology; positive contractual interest; negative contractual interest
Application of generally accepted categories, such as the category of contracts, to facts like negotiations, shows that negotiations can also be recognised as a contract. This is not the contract being negotiated, but a contract to negotiate, i.e. a contract deriving obligations to: 1) give a statement reacting to a statement received or provided in an inappropriate form; and 2) an obligation to restrain from causing damage to one’s negotiator. Agreement of wills on negotiations is reached, as in other contracts, in one of the ways recognised by law as a manner of giving statements of will (orally, in written forms or conclusively). Without an agreement of wills, persons cannot act in negotiations, so a unilateral statement fulfilling the conditions to be even qualified as an offer, will not constitute commencement of negotiations if the other side does not state its will accepting to negotiate. Liability for damages incurred during negotiations is a contractual liability, unless it was incurred as a consequence of an intent, and if that is the case, it is a liability in tort. Damages for which the liability is established can be pecuniary of non-pecuniary and within pecuniary damages – real damages or ceased gain. There are also two specific forms of damages – damages in the form of the so-called negative contractual interest and damages in the form or the so-called positive contractual interest. A negative contractual interest is a form of real damages, but one caused by an act of the damaged negotiator him or herself, meaning that it should be distinguished from damages caused by an act of the other negotiator causing damages. A positive contractual interest is a form of ceased gain, namely due to loss of benefits from another possible contract, not the same as the one negotiated. Analysis has shown that the one who gave an offer cannot be liable for ceased gain, not for positive or negative contractual interest. On the other hand, liability for ceased gain, as well as for positive contractual interest, can be caused only from the moment the offer was given and exclusively lays upon the addressee of the offer, not the offerer. The article also aimed to demonstrate that application of the method guarantees the correct conclusion. By selecting characteristic attitudes on liability for negotiations, application of the method shows that it can be a guarantee of correct results. The correctness relates to consistency of position, here on liability for negotiations, as well as equity and fairness of the solution. The method applied is the method of category analysis, i.e. subsuming the facts under categories which are undisputed and do not depend on the will of the legislator, i.e. the legal system. The legislator can regulate something opposite to the results which are methodologically guarantees as correct, but that does not dispute the correctness of results. On the contrary, it can be expected that this kind of legislative violence would have negative effects in the reality, which cannot be justified. This was only an experiment aimed to investigate the possibilities for methodology to guarantee the correctness of results. If it is shown that no mistakes were made, the method can be developed and applied to other legal issues, which would offer correct solutions to the legislator and the practitioners. A side result is the explanation of the category of liability for negotiations, as well as rules for application of norms for liability for negotiations.