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Precontractual liability, a comparative study of Columbian and French systems

Doctor :Betty MARTINEZ-CARDENAS
Thesis date :17 April 2013
Hours :10h
Discipline :Law
Add to calendar 04/17/2013 10:00 04/17/2013 13:00 Europe/Paris Precontractual liability, a comparative study of Columbian and French systems Pre-contractual liability is derived from the transfer of the duty of the contracting parties to act in good faith from the contract performance phase to the contract formation phase. This transfer was carried out in Colombia by legislative action through the 1971 Commerce Code and in France, by ju... false MM/DD/YYYY
Jury :

Denis MAZEAUD - Professor (université Paris 2 Panthéon-Assas)    

Thomas GENICON - Professor (université de Rennes 1)          

Yves PICOD - Professor (université de Perpignan)           

Yves-Marie LAITHIER - Professor (université de Cergy-Pontoise)

Pre-contractual liability is derived from the transfer of the duty of the contracting parties to act in good faith from the contract performance phase to the contract formation phase. This transfer was carried out in Colombia by legislative action through the 1971 Commerce Code and in France, by jurisprudence. Nevertheless, the repressive nature of liability during contract formation is still interpreted as simply a reminiscence of delictual liability, at best, and as a marginal sanction for contractual liability, at worst. The goal of this study in comparative law is to find a criterion that confers autonomy and specificity to pre-contractual liability. Therefore, careful analysis by the author led to the discovery that those who insist on denying the existence of pre-contractual liability by linking it to delictual liability have based their argument on a chronological perspective taken from the old notion of contract, i.e., the time of execution. Furthermore, in their view, the absence of a contract justifies the application of the non-contractual liability regime. However, a comparison of the Colombian and French systems on this matter shows the fragility of the argument when faced with the large number of victims of defects of consent who, day after day, prefer indemnification of damages instead of a ruling of nullity of contract. This fragility is much more evident when judges order the indemnification of damages in well-formed contracts, due not to faults related to failure to meet any of the obligations that are derived from them, but to faults originating in the contract formation phase. In essence, finding common ground and discrepancies between the Colombian and French law systems regarding the contract formation phase and comparing them with the mutations of the good faith regime seem to actually contribute to consolidating pre-contractual liability as an autonomous institution.

Keywords : break-off of negotiations, contractual freedom, duty of coherence, duty of discretion, duty of information, good faith, loss of opportunity, pre-contractual liability.