Compensation Scope of Liability for Breaking-Off Negotiation
Date Issued
2010
Date
2010
Author(s)
Tang, Tsai-Ping
Abstract
The First Chapter is “Preface”, which raises the issues concerning pre-contractual liability, introduces the purpose and mechanism of research, and sets forth the structure of this thesis for readers’ convenience.
Chapter Two discusses “Pre-contractual Liability Under Our Legal System and Relevant Issues”, in which the necessity and justification to protect pre-contractual liability is so confirmed by redefining the boundary of freedom of contract and contract justice. Our regulation concerning pre-contractual liability, i.e., Taiwan Civil Code Article 245-1 is also discussed in this chapter, in both perspectives of lecture and practice. This Article is under ardent debate in the scholarly field, in this regard, this thesis firstly points out the criticism pertaining to its criteria as well as the sequent legal effect, and then refers to relevant judicial decision made by the courts, to further explore the given issues.
Chapter Three explores “The Compensation Scope of Pre-contractual Liability” which should be analyzed under the fundamental theory of compensation law. In our system of compensation law, to determine the scope of compensation, the first significant step is to define the concept of “Loss”; therefore, the way to define the losses incurred from failed negotiations, to categorize them and so as to claim the compensation for them are also discussed in this thesis. The existing regulations and judicial practices are not of capability to deal with these issues, so some scholars have made their efforts and come up with several theories to solve the problems. This thesis aligns with these valuable theories and further explores them.
In Chapter Four, this thesis refers to the study of pre-contractual liability under different jurisdictions and legal systems, to discuss the establishing basis, general nature and compensation scope of pre-contractual liability, etc. Whereas study regarding pre-contractual liability and culpa in contrahendo in Taiwan derives from the abundant resources of Germany, the opinions of German scholar and practice are worthy of reference. Moreover, under Continent legal system, which has been deeply and widely influenced by German law, there are also timely thoughts in relation to compensation for failed negotiations of modern trade patterns. As to how these issues are solved under Anglo-American legal system, which is believed to be much diversified than Continent legal system, this thesis leverages the introduction of some novel theories, such as economic analysis of law, with expectation to provide with an insight into these issues.
Chapter Five “Rebuild the Pre-contractual Liability under Taiwan Compensation Law System”, in which Taiwan civil legal system is discussed, including tort law, Taiwan Civil Code Article 113, Article 245-1 and Article 216, in order to reflect our solutions toward pre-contractual liability issues, and make efforts to break through the fence of compensation scope, which is said to be limited to only reliance interests, to cover performance interests as well.
In Chapter Six “Conclusion”, opinions under comparative law are borrowed to our legal system, for instances, the amount of performance interests does not serve as a cap of compensation for lost reliance interests, compensation for performance interests is allowed in the circumstance where parties are close to conclude a contract, redefinition of interest conception under contractual liability, economic analysis of law, etc. The proposed amendment of Article 245-1: “One of the parties is responsible for the injury caused to the other party who believed in the constitution of the contract when he, in order to prepare or negotiate for the contract, has done either of the following: (1) Conducted the negotiation contrary to good faith; (2) Broken the negotiation contrary to good faith.”
Subjects
Pre-contractual Liability
Failed Negotiations
culpa in contrahendo
Compensation Scope
Loss
Reliance Interest
Performance Interest
Pure Economic Loss
Type
thesis
File(s)![Thumbnail Image]()
Loading...
Name
ntu-99-R95a21043-1.pdf
Size
23.32 KB
Format
Adobe PDF
Checksum
(MD5):d21d9cb25840f3f8af3f99b0e75224a6