چکیده:
Before concluding a contract, preliminary negotiations are useful for reaching an agreement, but they are not necessary. In daily and minor transactions, both parties reach an agreement in the shortest possible time and immediately proceed with the formation of the transaction through offer and acceptance. However, in major transactions conducted among merchants, it becomes unavoidable during the process of preliminary negotiations. Sometimes in such transactions, the pre-contractual period lasts for a long time, and before the contract is finalized, it is possible that each of the two parties incurs costs in hopes of achieving it. The risky nature of the pre-contractual period requires each party to bear their own loss; however, if the termination of negotiations occurs without concluding a contract due to the reprehensible behavior of one of the parties, the aforementioned loss is unjust and must be compensated by the other party. The responsibility to compensate for such loss is called pre-contractual liability. The theory of 'fault in preliminary negotiations' is the only independent theory presented to justify said liability. According to this theory, if either party, contrary to good faith, prevents the finalization of the contract through blameworthy behavior during the contracting process, or causes its future invalidity, they must bear the loss of the other party who had hoped for the conclusion of a valid contract. Countries following the civil law system have a positive approach to this theory, while countries following the common law system take a middle ground. This theory is unknown in Iranian law. One of its important causes can be considered the non-acceptance of the principle of good faith, which plays a key role in the aforementioned theory.
خلاصه ماشینی:
According to the aforementioned theory, with the commencement of preliminary negotiations, the two parties become bound to each other by obligations, the breach of which is considered a fault and causes pre-contractual liability.
(Kessler, 1963/64) The theory of "fault in preliminary negotiations" expresses that if any party, during the pre-contractual period, prevents the reaching of a final agreement through their reprehensible conduct or causes its invalidity, they are liable to the other and must compensate for the loss that the other has suffered by relying on the future contract or its validity.
According to a ruling issued by the Supreme Court of Germany in 1989, after it was determined that no contractual relationship existed between the two parties, the plaintiff's claim for compensation, which relied on the theory of "fault in preliminary negotiations," was also declared inadmissible.
d. ) The reason why some German legal scholars tend to consider the nature of the theory-based liability to be contractual is that the civil liability rules of that country are not responsive to compensating for losses incurred during the pre-contractual period.
(Kessler, 1963/64) In our law, some have defined the nature of an "implicit pre-contract" for it, without explicitly mentioning the theory of "fault in preliminary negotiations," the breach of which results in contractual liability.
In German law, compensation for B's losses may be possible by citing the theory of "culpa in contrahendo" (fault in preliminary negotiations), and in this regard, other bases of liability such as contract, misrepresentation, or unjust enrichment are not available.
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