Culpa in contrahendo

Culpa in contrahendo (Latin: negligence of contract ), often cic abbreviated, refers to the culpable breach of duties arising from a pre-contractual obligation.

Foundations and development

As one who has developed the principle of culpa in contrahendo, Rudolf von Jhering applies. Originally, the Civil Code did not know a legal institution, the pre-contractual breach of duty, (see the prevailing legal opinion ). There is a gap in the law has been recognized in the Civil Code, the law that those filled by the development of the legal institution of " culpa in contrahendo ".

Since the legal guilt Law Reform in 2002, the legal institution ( § 311, paragraph 2 in connection with § 280 para 1 in conjunction with § 241 paragraph 2 BGB now ) is regulated by law.

The " counterpart " pre-contractual " culpa in contrahendo " is the culpa post contractum infinitum. It covers injuries ongoing liabilities that occur after the completion of the contract.

In Switzerland, the c.i.c. so far not reflected in the law found. However, it is recognized in the prevailing doctrine and case law of the Federal Court as an independent basis for liability. According to Swiss doctrine is the c.i.c. a special form of trust liability.

Content and examples

It involves the replacement of a non-contractual (also: contract-like ) ( Trust ) damage. The claim results in special cases, a confidence-building (business) contact from the construction of a statutory obligation, which does not result from a contractual or other legal regulations. This contact can be by including contract negotiations occur, regardless of whether it ultimately comes to a conclusion of the contract or not. Legal Dogmatic reasoning of the c.i.c. is that already in the pre-contractual area the opposite effect of an increased possibility allows to legal interests of third parties. Therefore, it is assumed that increased protection and there are safety duties, making their injury damages.

For example, if a management consultant entrusted by a potential client company during the acquisition phase trade secrets, comes after but no agreement reached, and the business consultant then publishes the business secrets of this prospective, it is a case of culpa in contrahendo.

But even in more mundane situations obtains this institute meaning: Hurt you, for example strolling in a department store, because the cleaners are their tasks not complied properly (lettuce leaf fall ), or because the sales staff has stored products inappropriately in a high rack (so-called linoleum roller case contractual liability of the department store operator ), it is also opened here. Although Subordinated accesses next to the tortious liability. However, in tort law, the business men can (unlike in the area of ​​contract damages ) if appropriate, the responsibility for the misconduct of employees exculpate ( § 831 BGB).

This fact may be important when the responsible employee can not be determined or concrete itself does not have the financial means to pay for the damage. The culpa in contrahendo has special significance where the contractual liability to any other liability institutions, in particular with respect to the law of torts, a more far-reaching protection. The advantage is mainly in the area of ​​fault attribution ( no Exkulpationsmöglichkeiten of the person liable, see second example), as well as an assumption of this fault ( § 280 paragraph 1 sentence 2 BGB), which then must refute the opposite side ( burden of proof ). Even pure economic losses are recognized over the further contractual obligations. (see the first example above, the special protection of confidence ).

In exceptional cases, third parties from protecting culpa can be detected in contrahendo. This is done according to the rules of the contract with protective effect for third parties.