2021 Chapters (Layout Features)

Perspectives on precontractual liability in American Law: theory and practice

Neacsu, Dana

Traditionally, in American law, a party to pre-contractual negotiations can terminate them without civil liability repercussions. The only cost of this interruption is the loss of that party's investment in negotiations in terms of time, effort and expense. Thus, it is perhaps not surprising that American courts have rarely been asked to hold that a general duty of fair dealing arises from the very negotiations. But sometimes courts have found ways to compel the parties to negotiations to behave fairly without adhering to a principle of limitation of contractual freedom or good faith bargaining. Some would call it a typical common law attitude.