Abstract
Many recent legislations and international principles tend to apply the pre-contractual duty of disclosure as one of the most substantial principles governing the pre-contracting phase, such as Article 1112-1 of the Amended French Civil Code of 2016, Article 1337 of the Amended Italian Civil Code and Article 13 of chapter 2 of the Common European Sales Law, etc. However, the Palestinian legislature has ignored enacting legal provisions imposing the pre-contractual duty of disclosure which causes legislative deficiencies in the legislative remedies of the subject of pre-contractual duty of disclosure. In this regard, this paper suggests orientations for the formulation of the provisions of the pre-contractual duty of disclosure in the Palestinian Civil Code Draft (PDCC). To do so, a comparative analytical approach with the French civil code is used to illustrate the Palestinian legislative deficiencies and the urgent need to legislate a legal article which obligates the negotiating party to disclose any substantial information for the satisfaction of the other party. As such, the contractual equilibrium entails that the pre-contractual duty of disclosure has its own independent essence from all the theories that the jurisprudence adopted as a legal basis for this duty.
Highlights
There is no doubt that the negotiating party is always in favour of taking into account all the information, data, acquaintances and circumstances surrounding the negotiation process
This opinion is based on Article 1134 of the French Civil Code of 1804, which states: “1- agreements lawfully entered into have the force of law for those who have made them. 2- they may be revoked only by their mutual consent, or for causes allowed by law. 3- they must be performed in good faith”
98 See légifrance, le service public de la diffusion du droit, French Court of Cassation, civil room 1, public sitting of Wednesday 14 February 2018, no of appeal: 16-27263. https://www.legifrance.gouv.fr/affichJuriJudi. do?oldAction=rechExpJuriJudi&idTexte=JURITEXT000036648654 &fastReqId=323080316&fastPos=7 Légifrance, le service public de la diffusion du droit, French Court of Cassation, commercial room, public cases, unawareness of the information is justified if that important information which affects the satisfaction of the creditor of the duty of disclosure is difficult to reach, very expensive or it exists exclusively with the other party.[99]
Summary
There is no doubt that the negotiating party is always in favour of taking into account all the information, data, acquaintances and circumstances surrounding the negotiation process. The French jurist Galais Onloy believes that the precontractual duty of disclosure is based on the principle of good faith, which is the basis and source of all the obligations of every negotiator willing to conclude contracts to disclose to the other negotiator all necessary information that he or she knew or should have known.[69] This opinion is based on Article 1134 of the French Civil Code of 1804, which states: “1- agreements lawfully entered into have the force of law for those who have made them.
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