The culpa in contrahendo in german law: a contribution to reflections on pre-contractual liability

Abstract

The article analyzes the origin and development of pre-contractual liability (culpa in contrahendo) in German law, from its origin in Jhering, through its reception in the classic German doctrine, in the jurisprudence of the Imperial Court, to the recent theories of Stoll, Larenz and Canaris, showing, finally, its expansion by the Bundesgerichtshof. All this process is condensed in the positivation of the institute in the current § 311, inc. 2 and 3 of the BGB, where the figure is taken as responsibility for breach of a duty of consideration during the preparation phase of the contract.