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La culpa in contrahendo: un colosse aux pieds d'argile?
The Legal History Review (2005)
  • Nicolas Pierre Marie Kuonen

Jhering’s theory of culpa in contrahendo is largely based on Modestinus’ text D. 18,1,62,1. According to this paragraph, he who buys a res extra commercium in good faith may institute an actio empti in order to obtain compensation for the damage suffered as a result of having believed the contract to be valid. Jhering concludes, from the contractual nature of the actio, that a contractual relationship exists, despite the fact that the contract is null and void. The character of the actio empti is therefore exceptionally that of a pre-contractual liability action, allowing the claimant to obtain negative interest. This line of reasoning, which systematically attributes a material foundation to the Roman actio, is unconvincing. The actio empti according to D. 18,1,62,1 is justified by procedural and practical reasons which cannot prejudge the nature of the liability involved

  • Precontractual liability - Jhering - Roman Law- Brazilian Civil Code
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Citation Information
Nicolas Pierre Marie Kuonen. "La culpa in contrahendo: un colosse aux pieds d'argile?" The Legal History Review Vol. 73 (2005)
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