precontractuale

Precontractuale refers to the phase and the set of legal duties that arise in the negotiations before a contract is formed. In civil law traditions, this period is governed by the general principle of good faith and by specific obligations that parties owe each other during negotiation, such as honesty, fair dealing, and, in some cases, confidentiality and loyalty. The exact scope of these duties can vary by jurisdiction, but the core idea is to regulate conduct while the parties explore a potential agreement.

During the precontractual phase, parties may have duties to disclose material information, refrain from deception, and avoid acts that would unjustly harm the other party’s interests or mislead them about the likelihood of reaching an agreement. If there is an exclusive negotiation arrangement, additional duties to protect the other party’s legitimate expectations may apply. These obligations exist even in the absence of a formal contract and are designed to promote fair dealing in business negotiations.

Breach of precontractual duties can give rise to liability for damages, independently of any contract. Damages typically cover reasonable costs incurred during negotiations, informational or advisory expenses, and, in some cases, compensation for the loss of a chance to obtain a better deal or other financial losses caused by the breach. Proving fault, causation, and foreseeability is usually required. In many systems, there is no liability simply for failing to reach an agreement; liability attaches to acts such as misrepresentation, breach of confidentiality, or termination of negotiations without legitimate cause.

Risk management tools used in the precontractual stage include nondisclosure agreements, exclusivity clauses, and clearly defined termination terms. Overall, the precontractuale framework aims to balance freedom of negotiation with protections against unfair conduct.