Culpa in contrahendo
From German and civil law (from Jhering, 1861)
Contract and obligations
What it means
Liability for fault during negotiations, before any contract exists. A party that breaks off talks in bad faith, or misleads the other side, can be made to pay the costs the other side wasted in reliance.
Why it travels badly
English law holds that parties may negotiate in their own interest and walk away, and that a duty to negotiate in good faith would be inconsistent with that. Civil-law systems start from good faith, so the negotiation stage already carries duties.
How other systems say it
culpa in contrahendo (§ 311(2) and § 241(2) BGB)
Written into the Code in the 2002 reform of the law of obligations. Negotiating creates a relationship with duties of care and disclosure.
faute dans la rupture des pourparlers (art 1112 Code civil)
Parties are free to negotiate and to end negotiations, but a fault in how they do it can make them liable.
no duty to negotiate in good faith
Walford v Miles (1992): an agreement to negotiate is not enforceable, and a party may withdraw at any time.
Tip for translators and students
Do not render this as 'pre-contractual fraud'. The claim does not require deceit, only a breach of a duty of care during negotiations.
Related: Good faith, Obligation and Schuldrecht
Updated October 2026. Spotted a mistake? Tell us.
TheLawToKnow Tools’s glossary is an educational overview of the main differences between legal systems. It is not legal advice.
