Neue Entwicklungen zum Thema culpa in contrahendo

This paper highlights the potential, often neglected, of pre-contractual responsibility, which may be considered one of the richest and most interesting areas of private European law. The approach outlined here does not reduce negotiation to a mere phase of the procedure for drawing up the contract, but emphasises the need for a broader view. The observations made concerning culpa in contrahendo show that negotiating choices must be protected not only after they are made or exclusively in order to ensure their conformity with what was meant or intended. On the contrary, it is essential to regulate the behaviours that influence and guide such choices. The new laws arising from EU norms, especially those governing advertising and unfair commercial practices, are moving in this direction. Some important new developments are looked at in relation to the DCFR, which sets out specific regulations for “Marketing and pre-contractual duties” and may therefore represent the first step in the establishment of European pre-contractual responsibility. Particular attention is also paid to the nature of pre-contractual responsibility, which, despite the implications of the Tacconi ruling and Regulations n° 864/2007 EC (Rome II) and 593/2008 EC (Rome I), is treated here as essentially contractual responsibility. In the analysis of problems relating to culpa in contrahendo, account is taken of the relevant sections of the Italian civil code and the Gesetz zur Modernisierung des Schuldrechts of 2002, considering that in both Italy and in Germany this topic has received far more attention than in other legal systems.