On the nature of precontractual liability

António Graça Moura

Keywords

Precontractual liability; culpa in contrahendo; obligations; Jhering; unjustified breach of negotiations; contractual invalidity.

Abstract

The dynamism of juridical and economic traffic dictates the constant need of contracting between persons, be they natural or legal, in the exercise of their capacity to negotiate. The complex process leading to said contracting highlights, in particular, the institute of precontractual liability. The practical outlines of this institute — which, in the Portuguese Civil Code, appears laconically in an article with two numbers — have been discussed in doctrine and jurisprudence for several decades. Doctrines which link this institute to the regime of contractual liability confront with others which associate it with the regime of extracontractual liability and, in an intermediate position, there are doctrines which perceive it as a tertium genus between the formers. The objective of this text is to explore the framework and the meaning of this institute, apart from its historical and scientific root, to better understand its regime and the various positions held by doctrine, in particular regarding specific questions considered relevant, as the application, or not, of the presumption of guilt associated to obligatory liability.