영미법상 계약교섭의 결렬에 따른 책임

Precontractual Liability in Anglo-American Contract Law

In modern society many contracts require long-term negotiations. Consequently the disputes between pre-contractual parties arising out of the failure of negotiations occur more increasingly. And the resolution of these disputes has assumed increasing importance. However common-law and civil-law systems have arrived at different solutions. According to the civil-law tradition, especially according to German legal theory, many Korean legal scholars have advocated to adapt the concept of ‘culpa in contrahendo (fault in contracting) developed by Rudolf von Jhering and now codified in §311 II BGB to resolve these disputes. However Korean courts have applied the rule of torts with regards to this kind of cases. This article introduced the precontractual liability in Anglo-American Contract Law as an reference for further discussion in Korean legal theory. Above all, this article followed the theory of Farnsworth, the most famous American scholar in contract law. According to his theory, the possible grounds for the precontractual liability can be grouped under four headings: (1) unjust enrichment resulting from the negotiations; (2) a misrepresentation made during the negotiations; (3) a specific promise made during the negotiations (promissory estoppel); (4) an agreement to negotiate in good faith. This article concluded that this type of approach to the precontractual liability is available for the further development of theory in Korean legal system as well as in Anglo-American legal system.