In pre-contractual liability, regarded here as a form of tort liability, wrongfulness consists in breaching the statutory duty to act in good faith when negotiating and concluding a contract so as not to cause harm. Good faith in this context is a moral standard: it calls for fair, honourable, honest and loyal dealings when negotiating and concluding the particular agreement. Liability requires actual loss. In tort, damage is understood as the consequence of an infringement of the negative interest: the wrong produces a change that the injured party did not want. The interest in that change not occurring is termed the negative interest. Tort liability compensates for the unwanted change by restoring the position that would have existed without it. In pre-contractual dealings this interest is infringed, for example, where negotiations break down and the contract on which the creditor relied as their first choice for obtaining the benefit of performance is not concluded. The same issue arises if the parties conclude a void contract or one that is subsequently annulled or rescinded: the contractual relationship either never arose or was terminated with retroactive effect. The creditor must then conclude a new contract to secure the benefit that the first contract failed to provide. There are two aspects to the loss. First, the creditor incurred expenses in concluding a contract that did not deliver the expected performance: this is loss actually sustained. Second, there may be a difference between the terms on which the creditor could have secured performance under the first contract and the terms available under the second: this represents lost benefit. Unlike the positive interest, which concerns performance, compensation for the negative interest does not seek performance: there is no obligation because the contractual relationship never existed or no longer exists. Rather, the creditor regrets having relied on that contract to achieve their objective and seeks compensation for the opportunities forgone in reliance on it and reimbursement of the expense incurred to no purpose in concluding it. Where the loss caused by bad faith in negotiating or concluding a contract becomes a consequence of non-performance of an existing contractual obligation, contractual liability absorbs pre-contractual liability.<\/p>\n
This article is neither a legal opinion of attorney Elitsa Markova, attorney Mihail Tomov or a lawyer at Markova, Tomov and Partners, nor advice concerning a particular situation or person. For assistance with a similar case, consult a civil lawyer who specialises in tort liability.<\/em>
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