Culpa in contrahendo: A comparative context for Scots law?

Research output: Chapter in Book/Report/Conference proceedingConference contribution

Abstract

In Scotland in modern times it has been suggested on the one hand that Walker v Milne (1823) is the beginnings of a doctrine of culpa in contrahendo rooted in a general requirement of good faith between negotiating as well as contracting parties. On another view the decision has been said to be based on equitable qualifications of standard doctrine on contracts in formal writing that have ceased to be necessary after statutory changes to that doctrine in the 1990s; accordingly the case is no longer good authority for anything. In between were further arguments that the case showed the recoverability of damages for non-fraudulent mis-statements in the law of delict (the Scottish label equivalent to tort), or alternatively that it was based upon principles of unjustified enrichment.
This paper, following Castronovo’s argument about the possibility of pre-contractual liability between contract and tort, belongs in the first of these various camps. The contribution seeks further to support that suggestion by reference in particular to the comparative position on this subject and argues that the negative view of the case is unduly influenced by the absence of a culpa in contrahendo doctrine in English law.
Original languageEnglish
Title of host publicationLa scienza del diritto civile e la sua dimensione internationazionale
Subtitle of host publicationAtti del Convegno per la presentazione dei volumi "Le parole del diritto. Scritti in onore di Carlo Castronovo", Milano, 15 Novembre 2019
EditorsAntonio Albanese, Andrea Nicolussi
Place of PublicationTurin
PublisherG Chiappichelli, Torino
Chapter5
Pages59-83
Number of pages25
ISBN (Print)9788892139060
Publication statusPublished - 1 Aug 2021

Keywords

  • Scots law
  • obligations
  • culpa in contrahendo
  • pre-contractual liability

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