How far does the dynamic doctrine go? Looking for the basis of precontractual liability in the CISG

Anne Rossen, Marie Hummelshøj Pedersen, Thomas Neumann

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Imagine the businessman who enters into contract negotiations with the purpose of gaining otherwise confidential knowledge about a competitor’s trade practices. Is he liable to pay the other party’s negotiation costs when the negotiations are broken off? The question is answered differently in domestic legal systems and it is understandable that one might attempt to classify the situation as either a contractual one or one of tort.1 The problem of such a binary view is often that “[…] the parties are no longer strangers to each other as presumed by tort law, nor are they parties to a contract which contract law requires to trigger all the rights and duties […]”,2 hence a third alternative way is used in some legal systems.3 The inherent conundrums of precontractual liability are familiar in most domestic legal systems, but they also turn overly complex if the parties are located in each their jurisdiction. This article analyses whether the United Nations Convention on Contracts for the International Sale of Goods (CISG) governs any precontractual questions. Precontractual liability under the CISG has been discussed sparsely in the literature and since the Convention neither expressly deals with nor excludes precontractual liablity it leaves a gap of knowledge. A further examination of the Convention’s applicability to precontractual liability, what the legal foundation of such precontractual duties may be, and what such duties may consist of is desired.
TidsskriftNordic Journal of Commercial Law
Udgave nummer1
Sider (fra-til)1-31
Antal sider31
StatusUdgivet - 15 maj 2020


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