Liability for fault in contracting refers to the fault of one party in the process of contracting.

Fault, resulting in the loss of trust interests of the other party, shall bear the responsibility according to law.

Liability for compensation. Looking at the provisions of contract legislation on contract liability and breach of contract liability.

Of course, it is the main form of liability in contract law, but the liability for contracting fault is more important.

It has practical significance and discussion value, because the former can be agreed by the parties to the contract.

Solution, while the latter is not, must be confirmed by national legislation; Also, correlation

As a supplement to the liability for breach of contract, the liability for contract negligence is a sign of the integrity of contract liability.

First, the emergence and development of liability for fault in contracting

German jurist Yelling first systematically expounded the theory of liability for fault in contracting.

186 1 year, he published "Association" in the fourth volume of Yelin Law Yearbook edited by himself.

Compensation for damages in case of contract negligence, invalid contract and incomplete contract "

This paper analyzes the liability for fault in contracting, and points out that "the law not only protects

Existing contractual relationships and ongoing contractual relationships are also included.

Otherwise, the contract transaction will be exposed and unprotected, and one party to the contract will not

Avoid being the victim of the other party's negligence or inattention ... Therefore, all parties concerned are responsible for themselves.

If the contract is not established due to negligence, the counterpart who believes that the contract is effectively established shall

Compensation for trust damage. "Yelin founded the theory of contracting fault, so to speak.

It is a pioneering work in the development of contract law theory and the cause of contract in real life.

If the defect is invalid or revoked from the beginning, the party at fault shall bear the corresponding responsibility.

It provides a theoretical basis for making the contract responsibility system more complete and can be used as a contract.

People provide more general protection. It is based on this that countries have established this theory.

The important influence of law. Since then, the people of Germany, Italy, Japan, Greece and other countries

The Code stipulates the liability for fault in contracting. Liability for negligence in concluding a treaty in China's civil law

It first appeared in the Law on Foreign-related Economic Contracts. Article 1 1 of this law stipulates that "the parties.

One party shall be responsible for the invalidity of the contract and the losses suffered by the other party due to the invalidity of the contract.

Be liable for compensation. "So made the" general principles of the civil law "article 6 1, the first 1:

"After a civil act is confirmed to be invalid or revoked, the parties concerned obtain it because of the act.

The property should be returned to the party who suffered the loss. The party at fault should compensate the other party.

The losses suffered from this. If both parties are at fault, they shall bear their respective responsibilities. "

The article shows that China recognizes the liability for fault in concluding a contract when the contract is invalid or cancelled, but

There is no provision for the liability for fault in concluding a contract when the contract is not established and when the contract is established. It should be said that

Not yet complete.

In order to maintain transaction security, the Uniform Contract Law promulgated by 1999 was promulgated in Article 42.

Articles 43 and 58 further improve the liability for fault in concluding a contract and apply to the case that the contract is not established.

The liability for fault in contracting is supplemented, but the contract is concluded under the condition that the contract is established.

The loss of responsibility has not been involved. The author believes that in many cases, although the contract has been concluded,

In this process, one party has the problem of contracting fault, but the other party may be anxious.

Need the result of contract performance without claiming that the contract is invalid, in this case, it should still be

It is only fair and reasonable to give the parties the right to investigate the liability for fault in contracting. Therefore, our country

The contract law should make supplementary provisions on this issue.

Second, the nature of liability for fault in contracting.

Regarding the nature of liability for fault in contracting, there has always been controversy and infringement in theoretical circles.

Behavior theory, legal behavior theory, legal provisions theory and the principle of good faith theory. Clock method

According to the theory of legal act, the liability for fault in concluding a contract is caused by the parties when concluding a contract.

There is an implied contract between people, or it is based on the contract concluded by the parties later. This in itself is

Logically, it is contradictory, because this statement confuses the liability for fault in contracting theoretically.

The difference between liability for breach of contract and liability for breach of contract; According to the theory of legal provisions, the liability for contracting negligence arises from

The direct stipulation of the law is actually the nature of all legal responsibilities, not contracts.

Unique to negligence. In my opinion, comparatively speaking, the theoretical basis of tort is honesty and credit.

More reasonable reasons are as follows:

Tort theory holds that the liability for contracting negligence is caused by the tort of the parties.

So it is a tort liability. This theory has certain rationality, such as

In terms of the composition of liability, the composition of fault liability in contracting is completely consistent with tort liability.

, there must be loss behavior; The parties have losses; Behavior and loss

There is a causal relationship; And the parties are at fault. However, liability for fault in contracting is also common.

Inconsistency of tort: if tort liability is compared, the liability for contracting fault is correct for the parties.

People's duty of care is higher, because there is a kind of contract between the parties.

A certain degree of trust, and tort liability generally occurs in people who have no prior contact.

Between; At the same time, tort liability is limited to the proof and limitation of fault, and the victim

It is more difficult to obtain legal protection than contractual liability.

The principle of good faith is a popular general theory at present, which holds that contracting

The reason of negligence liability is that the parties violate the obligation of prior contract, but prior contract.

It is based on the principle of good faith, and the parties bear the responsibility in the process of concluding the contract.

Notification, cooperation, protection, confidentiality and other obligations. , so the basis of contracting fault liability is

Responsibility arising from the principle of good faith. The rationality of this theory lies in its grasp of the meaning of prior contract.

The particularity of service determines that the liability for fault in contracting is different from the general tort liability.

To sum up, the author believes that the nature of liability for fault in contracting should be used for reference.

The reasonable component of the above two theories, that is, the liability for fault in contracting, is based on the principle of good faith.

Special tort liability between specific parties (negotiated by both parties to the contract), so legislation

Based on this particularity, we should make special provisions on it on the basis of general tort liability.

Rules of procedure.

Three, the constitutive elements of liability for fault in contracting

1. In the process of concluding the contract, one of the contracting parties violated the previous contractual obligations. To conclude/sign a treaty

The essential difference between liability for negligence and liability for breach of contract is that the former occurs when the contract is established.

Prior to this, it violated the pre-contract obligation based on the principle of good faith, while the latter was issued.

Born after the contract was established, it violated the obligations stipulated in the contract. Although this is theoretical.

Although it can be well distinguished, there are still some details that need to be further clarified.

Clarity: the generation time of pre-contract obligation based on the principle of good faith. have

Scholars advocate the theory of "the validity of an offer", that is, the pre-contract obligation comes into being and takes effect because of the offer.