先合同义务及其比较法学研究

On Precontractual Liability and Its comparative analysis

先合同义务是指合同成立前及合同无效时缔约双方当事人所负的附随义务。始于德国法学家耶林(VonJhering)提出的"缔约上过失"的先合同义务理论,虽然在大陆法系和英美法系发展各不相同,但两大法系都注意到合同订立前的预备性协议阶段,认为基于信赖应该赋予当事人一定的义务,即先合同义务。先合同义务理论的发展在某种意义上说正好反映了合同法本身的根本变革。

Precontractual liability is a kind of collateral liability imposed on the both parties before the contract is concluded or when the contract is void. It was first expounded by German jurist Von Jhering as Culpa in contrahendo. Though the theory developed differently in statute law system countries and common law system countries, the two systems both concern about preliminary agreement and maintain that precontractual liability should be imposed on the both parties based on reliance. The development of the theory reflects the reform of contract law.