The Dance of the Deal Exploring Culpa in Contrahendo and ECJ Jurisprudence

Abstract

Culpa in contrahendo, also known as pre-contractual liability, is an essential legal doctrine that regulates the behavior of parties during contract formation and negotiation. In the European Union, culpa in contrahendo has been the subject of extensive jurisprudence by the European Court of Justice (ECJ), which has played a significant role in influencing its development and application in EU contract law. This paper provides an overview of culpa in contrahendo and its development, as well as an analysis of the ECJ's case law on the doctrine. Subsequently this paper examines important ECJ decisions and evaluates the efficacy of culpa in contrahendo in EU contract law. In addition, the paper examines the practical application of culpa in contrahendo and compares it to other legal doctrines including estoppel, unjust enrichment, and good faith. In comparison to these other doctrines, the advantages and disadvantages of culpa in contrahendo are highlighted. Ultimately, the paper asserts that culpa in contrahendo is a useful legal concept for regulating pre-contractual behavior, despite its restricted applicability and dependence on a fault-based approach, which hinders its efficacy.