Conscientious Negotiation: Principle, Presumption, Duty

Abstract

The article is devoted to the rules of the Civil Code of the Russian Federation on negotiation. The purpose of the article is to explore the relations of negotiation from a legal point of view and to find answers to questions related to the duty of fair negotiation. An important role in answering these questions is played by the decisions of the Supreme Court of the Russian Federation, generalization of the practice of lower courts, explanations and recommendations, including those that include the qualification of legal relations arising from negotiations, from the point of view of their legal nature. The article analyzes the legal norm on negotiation, examines the positions of different authors on the issues raised, provides examples of decisions from both foreign judicial practice and domestic courts. By using a number of scientific methods (general scientific analytical method of cognition, system-structural, technical-legal, formal-dogmatic, and comparative-legal), the author comes to the following conclusions: 1) the principle of fair negotiation is a special case of the principle of good faith; 2) due to the fact that good faith is an evaluative concept, it is impossible to fix strict requirements for its definition in the law. In this connection, when specifying the principle of good faith, the legislator often uses presumptions, and a kind of approximate list of cases is formed by judicial interpretation, which makes it possible to determine what to attribute to conscientious or unscrupulous behavior; 3) the obligation to conduct negotiations in good faith arises in connection with the commission of mutual actions by the negotiators to enter into negotiations. In this capacity, any action can be considered that is sufficiently definite (in some cases, requirements for it may be established by law) and expresses the intention of the person to consider himself negotiating with the addressee, who will perform the same fairly definite action in response; 4) the obligations to conduct negotiations in good faith are related either to informing within the framework of a pre-contractual obligation, or to the negotiation process itself.