Ikisutartinės atsakomybės kvalifikavimo problema: sutartinė, deliktinė ar sui generis.

Abstract

The recent Lithuanian legal doctrine and court practice shows discrepancies in cases dealing with pre-contractual liability. There is no consensus on this issue in the legal writings as well. Opinions vary especially on the question of which type of liability rules - contractual, tort or sui generis -should be applied in the case of breaking off negations in bad faith. In this article the authors argue that in order to ensure legal certainty and stability it is necessary to establish clear scope of pre-contractual liability and to identify precisely the liability rules which apply in such cases. Research on the historical developments on pre-contractual liability in different European countries shows that most legal systems recognize the need to govern the parties’ relations at the contract formation stage. However, until today legal systems vary on the approaches towards it, especially in respect of its scope and on the way it should be imposed: some civil law jurisdictions generally recognize this duty as a general principle of law, and some of them provide for specific provisions establishing its framework. In the second part of this article it is discussed whether the rule requiring the parties to negotiate in good faith and the claim for pre-contractual liability of a defendant is a matter of tort, contract or quasi-contract. The authors argue that in order to qualify pre-contractual liability it necessary to identify the nature of negotiations and the factors determining the scope of liability for their breach. Taking into account the specific legal rules on obligations of parties in pre-contractual relationships established in the Civil Code of Lithuania, as well as the current court practice on this issue, the authors conclude that there is no sufficient justification to apply in full contractual or tort legal regimes for the pre-contractual stage.[...].