A Comparative Perspective On Pre-Contractual Liability And Duties Of Good Faith In Germany and China ​

This paper analyzes the regime of pre-contractual liability in Germany and China. The first chapter is focused on reliance, which is the very conceptual core on which pre-contractual liability is shaped. The chapter proceeds by exploring the impact that pre-contractual liability has on markets economically speaking. The second chapter begins the analysis of provisions and of the history of the formation of the doctrine in Germany; particular attention is posed on the theories of the eminent scholar Rudolph von Jhering, considered to be the father of culpa in contrahendo, and how they impacted the codification of the doctrine in the Sections of the BGB. The third chapter is entirely dedicated to the Chinese legal landscape; from the process of importation of pre-contractual liability to the modelling of the doctrine to the necessities of the Chinese society through case law and the vast jurisprudence of the scholars. Article 42 and 43 of the Chinese Contract Law are the main topic, as they are the codified basis of the pre-contractual liability regime in China. The paper goes on by exposing the comparison between the Chinese Contract Law, the PICC and the PECL, widely recognized as the major source of inspiration from which the Chinese legislator took many ideas. The last pages of the paper are dedicated to good faith duties, which were of great importance during the phase of codification of pre-contractual liability, working as boundaries to limit the broad original concept. ​