introduction 13

during the final editing, or by reporters who did not finalise their reports until 2007, most of the national reports were completed by the end of 2005.

2. The questionnaire

a. Precontractual liability

The questionnaire was intended to cover all types of cases which in any of the European systems are regarded as dealing with liability for conduct (including omissions) during the precontractual stage. Precontractual liability was the focus of the study. It was therefore not concerned mainly with other effects of precontractual misconduct, such as the invalidity of any contract which is formed.47 Indeed, in most cases discussed in this volume no contract is formed at all; usually the party seeks a remedy for the very reason that her hopes of a contract have been dashed as a result of the breakdown of the negotiations, and the losses which she seeks to cover may be the failed expectation of the contract itself, as well as other losses such as expenditure incurred during the period when the negotiations were on foot. We have included, as the last case in the volume, a quite different set of facts where a contract is concluded, for the very reason that we wished to see to what extent the principles which emerge from the answers to the other cases in the book are limited to the case where there is no contract. But in this volume we are generally concerned only with liability which arises during the precontractual48 stage itself.

The national reporters were therefore asked to discuss each case, addressing the questions: (a) whether party A was liable in damages (this may be in tort, contract, restitution, culpa in contrahendo or on the basis of any other doctrine); (b) if so, to what extent she was liable (in particular, reliance or expectation interest); (c) whether party B had any other remedies (such as a court order to continue negotiations, to conclude the contract or to perform the contract); and (d) whether some of the remedies might be cumulated.

47Cf. the volume by Ruth Sefton-Green, Mistake, Fraud and Duties to Inform in European Contract Law (2005), which has a more significant focus on the (in)validity of the contract for certain types of precontractual misconduct and mistake.

48Hence our deliberate use of the word ‘precontractual’ rather than ‘pre-contractual’. The latter may tend to suggest that it is referring to the period before a contract which was in fact concluded.