The Role of Good Faith in the Pre-Contractual Responsibility in International Contracts: A Comparative Study between Common Law and Civil Law

Abstract

The present study investigates pre-contractual responsibility as it pertains to Private International Law. The researcher attempts to determine the terms and conditions of this responsibility. First, he bases the study on an analysis of doctrine and case law related to Good Faith, then he turns to examine various provisions under international documents. More specifically, this work examines how breaches in negotiations are dealt with when there are no existing pre-contracts. In order to determine the parameters involved, the nature of the responsibility will be determined. Since it has not been coded in a lot of nationals laws and is not specified in any major international documents, liability is considered within the framework of one of two main systems, either contractual or extra-contractual. In most civil law countries, the doctrine and jurisprudence have associated pre-contractual liability with the extra-contractual framework. Meanwhile, the notion of freedom prevents Common Law countries from accepting the concepts of good faith and pre-contractual liability, even though they sanction faulty behaviour during negotiations through various mechanisms. The nature of the liability remains unclear under International law due to the diversity among members comprising the committees that elaborate norms. However, all agree that there is a fundamental concept underlying pre-contractual liability: that of good faith. It remains central to the notion of fault and dictates the ethics involved in negotiations.