General Forms of Precontractual Liability: A Brief Overview in Light of the Perspective of Recodification of the Civil Code of Ukraine and International Experience

Abstract

Based on the guidelines outlined in the Сoncept of Updating the Civil Code of Ukraine, this article conducts a comparative legal analysis of the provisions of the Principles, Definitions and Model Rules of European Private Law (DCFR) and the French Civil Code concerning the consequences of bad faith conduct during negotiations. It has been established that in the DCFR, the protection of the aggrieved party within the scope of pre-contractual liability is close to the principle of full compensation for property and non-pecuniary damage, except for compensation for positive interest, which is not sufficiently clearly distinguished from loss of profit. In contrast, the French experience is characterized by a legislative limitation on the scope of possible compensation, from which follows the general rule regarding the inadmissibility of compensation for loss of profit.
The provisions regarding compensation for property damage and pre-contractual liability proposed in the Draft Civil Code of Ukraine have been examined. It is argued that limiting compensation for damages – as a general form of precontractual liability – to actual damages indicates that the approach proposed in the Draft Civil Code of Ukraine is close to the French experience, constitutes an exception to the principle of full compensation for property damage, and at the same time represents a feature of precontractual liability. It has been established that the general forms of precontractual liability, which can be identified based on the provisions of the Draft Civil Code of Ukraine, are compensation for actual damages, reasonable compensation at the court’s discretion in cases where it is impossible to precisely determine the amount of actual damages, and compensation for moral harm. Proposals have been formulated to improve the provisions on precontractual liability proposed in the Draft Civil Code of Ukraine, which consist of clarifying the content of unlawful conduct as an element of the basis for precontractual liability and expanding the list of types of actual losses covered by compensation.