PRECONTRACTUAL LIABILITY ON THE PROPOSED REFORM: A MISSED OPORTUNITY? (PART I).

Abstract

In response to a longstanding demand, the proposed preliminary draft for the Act on Modernization of the Law of Obligations and Contracts (published in 2009) contains a chapter on the conclusion of contracts. The Lawmaking Committee seized this opportunity to regulate one of the issues that regularly poses some of the most intricate legal snarls: precontractual liability. This two-part paper offers a critical overview of the preliminary draft's take on the subject through an examination of the important international texts that inspired it and references to the legislation of some of the countries around us. The foundations underlying the paper are provided by the foremost contributions made by Spanish legal thought and case law over the last few decades. The first part of the paper gives an approach to the very concept of precontractual liability and the proposed text. The text's lynchpin, the idea of bona fides in contrahendo, is scrutinized, and the main manifestations of the contents of the duty of bona fides in the negotiating phase are studied carefully. The second part of the paper (soon to be published) contains an analysis of the complex issue of the remedies anticipated for cases where this duty is violated and the thorny problem of the legal nature of this particular.