This thesis explores the theoretical basis of precontractual liability for the unilateral breaking-off of negotiations, by undertaking a comparative study between three selected jurisdictions (Germany, France and Chile). It defines a 'paradigm case' and focuses on it in order to find the theoretical basis of this liability. Traditionally, precontractual liability for breaking off negotiations has been founded upon or at least linked with the notion of good faith. This thesis, however, argues that in the selected jurisdictions the true basis of this liability is the notion of 'reliance' and distinguishes two dimensions of reliance (referring to them as 'trust-based' and 'expectation-based'). It analyses the relationship between these dimensions arguing that in the selected jurisdictions the trust-dimension merges with the general principle of good faith and that the expectation-dimension emanates from the trust-dimension. This thesis argues that this innovative approach to the theoretical analysis of the foundation of this liability could have important practical consequences in jurisdictions which do not embrace a general principle of good faith. It focuses on English law, as a contrasting jurisdiction to the selected jurisdictions, in that it rejects a general principle of good faith and, especially, the notion of a duty to negotiate in good faith, which is generally considered to lead necessarily to the rejection of a general principle of precontractual liability. This thesis demonstrates that while English law can provide protection for certain cases of precontractual liability, it currently does not protect the paradigm case. It argues that if the analysis is shifted from good faith to the notion of reliance, English law could develop one or more of its particular solutions in order to protect the paradigm case, if it desired to do so, and explores how such a development could be implemented without establishing a general principle of precontractual liability.
| Identifer | oai:union.ndltd.org:bl.uk/oai:ethos.bl.uk:729128 |
| Date | January 2017 |
| Creators | Rios, Isabel Zuloaga |
| Contributors | Cartwright, John |
| Publisher | University of Oxford |
| Source Sets | Ethos UK |
| Detected Language | English |
| Type | Electronic Thesis or Dissertation |
| Source | https://ora.ox.ac.uk/objects/uuid:44ea6440-4dde-49fc-9035-9edf34065d1c |
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