Culpa in Contrahendo: a Comparative Law Study: Chilean Law and the United Nations Convention on Contracts for the International Sales of Goods (cisg)

This paper will analyze the doctrine of culpa in contrahendo, including statutory provisions and case law adopted in different jurisdictions in which this theory has been applied. In doing so, this paper will provide a general description of the culpa in contrahendo doctrine, and then it will introduce the legal perspective of a judge facing a case of pre-contractual liability in Chile. Finally, it will analyze the applicability of the culpa in contrahendo doctrine under the United Nations Convention on Contracts for the International Sales of Goods (CISG), and how the Convention can affect the decision of a judge applying its rules instead of Chilean rules. Section II of this paper will start by providing some of the most common definitions of culpa in contrahendo that have been used by different commentators and courts. It will also include a short historical background of the doctrine. Further, it will set forth the basic elements of culpa in contrahendo. Finally, the legal nature of the liability–tort or contractual liability–will be broadly discussed, including a comprehensive analysis of the damages that a plaintiff can recover with a culpa in contrahendo action. Section III will set forth the facts of a hypothetical case that will become the basis of the discussion in the following sections. Section IV will give the perspective of a judge in Chile facing a case of pre-contractual liability as set forth in Section III. Despite the condition of the civil law system in Chile, this section will discuss not only Chilean statutory law but also some interesting court decisions. Section V of this paper will analyze the applicability of the culpa in contrahendo doctrine in an international setting. For the purposes of this analysis, it will be presumed that the parties of the hypothetical case are citizens of different countries, and those countries have adopted the CISG. Even though this section focuses on CISG provisions, the International Institute for the Unification of Private Law; Principles of International Commercial Contracts (UNIDROIT Principles) will also be analyzed, along with some case law materials. Finally, Section VI will summarize the main conclusions that can be extracted from the legal analyses made in this paper.