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Legal Characteristic
Scholars debate the character or nature of legal liability under
culpa in contrahendo.
Some contend that
culpa in contrahendo
creates liability due to
noncompliance with the contract, as the contractual relationship itself
is deemed to encapsulate the pre-contractual phase. Therefore, the par-
ties may be held liable for actions that constitute breaches of the con-
tract during the entirety of the pre-contractual phase
1
.
On the other hand, some scholars hold that liability pursuant to
culpa in contrahendo
is based on tort liability
2
. Accordingly, there is
no contractual relationship during the pre-contractual phase.
Consequently, only the dispositions and principles of tort liability may
be applied to the behavior of the damaging party.
Apart from the above, another opinion upholds the
sui-generis
lia-
bility concept for
culpa in contrahendo
3
. The Federal Supreme Court
of Switzerland sustains this opinion in its decisions. Pursuant to this
opinion, the basis of the liability is the breach of mutual trust and the
relationship of confidence created during the negotiations for the con-
clusion of a contract, and of the principle of good faith and diligence.
Conditions to establish
Culpa in Contrahendo
Liability
In order to invoke
culpa in contrahendo
, a pre-contractual rela-
tionship between the parties should be established, since the parties are
obliged to negotiate in good faith and with diligence. Where a party
breaches these obligations and harms the other party, the second con-
dition for liability, the damage with the causal link, is also fulfilled.
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NEWSLETTER 2014
1
Eren,
defends that the liability due to a damage caused during the contract negotiations phase
is a contractual liability.
Eren, Fikret:
Borçlar Hukuku Genel Hükümler
, 14. Baskı, Yetkin
Yayınları, Ankara, 2012.
2
Please refer.
Kılıçoğlu, Ahmet M.,
Borçlar Hukuku Genel Hükümler,
Turhan Kitabevi, Ankara,
2006, p. 60;
Uygur, Turgut,
Açıklamalı – İçtihatlı Borçlar Kanunu, Sorumluluk ve Tazminat
Hukuku,
Seçkin, Ankara, 2003, p. 234.
3
Gezder,
defends that there is a legal lack for
culpa in contrahendo
, therefore the liability under
culpa in contrahendo
should be a
sui-generis
liability.
Gezder, Ümit:
Culpa in Contrahendo
Sorumluluğu,
Beta, İstanbul, 2009.