PRECONTRACTUAL LIABILITY IN THE PLANNED REFORM: A LOST OPPORTUNITY? (PART II)

Abstract

This is the second part of a paper whose first instalment was printed in a previous issue of this journal. Here we look into two of the major issues that have sparked the hottest debate concerning precontractual liability: the recourses available to a person injured by infringement of bona fides in contrahendo and the legal nature of precontractual liability. Although the Proposed Preliminary Bill for the Modernization of the Law of Obligations and Contract Law published in 2009 does address precontractual liability, legislators have remained notably silent on some points, and the uncertainty that will be perpetuated in Spanish legislation if the text is made law will be equally notable. We analyze the preliminary bill proposal and endeavor to offer a critical view of the proposal in connection with precontractual liability through an examination of the important international instruments on which the Code Committee drew for its inspiration and through reference to the leading contributions of the last few decades of legal thought and case law. Spanish legislators are displaying a surprising amount of anxiety and a surprising absence of careful, systematic planning in these issues-surprising not only because of the vast practical importance of the matters at issue, but also because there are obvious models in the international texts on which the Proposed Preliminary Bill itself is based.