pre-contractual liability in greece by ashrafp

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									Pre-contractual liability in Greece

From Cathérine Cotsaki


Some legal systems state special rules of liability for malicious actions preceding the conclusion of a contract,
distinguishable as well from the liability in tort or delict as from contractual liability. Here they are referred to as
“pre-contractual liability”.

The following questionnaire is supposed to serve as the basis for a survey in comparative law on this issue.

It is supposed to determine the existence of such a legal concept in the law of your country, its extent, its
definition, its legal requirements and other important aspects.

The subsequent tabloid contains a) the questions in the first column, b) an explanation in the second and c)
exemplary answers for the law of Germany in the third column.

Be so kind to answer these questions in English. Please give acts, codes, quotations etc. in an unabbreviated
form, to avoid misunderstandings.

No Question            Comment            Examples             Answers from Catherine Cotsaki, Athens

1.   The law of Please state to        Germany                 Greece
     which         which country’s
     country are law your answers
     you referring refer to. Please
     to?           specify, in case
                   that you only refer
                   to the law of a
                   specific part of a
                   country, e.g. a
                   province of
                   Canada, a state of
                   the USA etc.

2.   Does pre-         Do special rules forYes                 Yes
     contractual       liability for actions
     liability exist   anteceding the
     in the law of     conclusion of a
     your              contract exist at
     country?          all?

3.   In case thereGive the original       „rechtsgeschäfts- Εσθύνη από ηις διαπραγμαηεύζεις (Efthini apo tis
     is a special name in the             ähnliche Schuld- diapragmatefssis)
     name for thislanguage of your        verhältnisse“,
     legal        country’s law.
     concept,                             until 2002:
     how is it                            „vorvertragliche
     called?                              Schuldverhältnisse
                                          “

4.   What would Please give the           “contract-like       Responsibility accruing out of negotiations.
     the English most fitting             obligations”,
     translation translation.
     be?                                  until 2002: “pre-
                                          contractual
                                          obligations”
5.   How is the        Give the most       Liability without the Liability for infringement of good faith and lex
     definition of     common/ accepted necessity of a valid mercatoria during the negotiations for the conclusion of
     pre-              description of this contract nor a        a contract.
     contractual       legal concept.      tortuous act due to
     liability?                            contacts preceding
                                           a contract

6.   Was pre-        Please specify if it       since 2002:        Pre - contractual liability is established by Legislation.
     contractual is partially set up            statutory,
     liability       by statute and             originally: judge-
     established partially judge-               made law being a
     by legislation made law.                   generalisation of
     or is it judge-                            some statutory
     made law?                                  rules

7.   Since when        In which year has itDeveloped since            Pre – contractual liability exists in the Greek Legislation
     does pre-         been established ca. 1920 as judge-            as of February 23, 1946 when the Civil Code was put
     contractual       by statute or court made law                   into force. To be noted that the Greek Civil Code was
     liability exist   decision?                                      initially put into force as of July 1, 1941, but it was
     in the law of                         Since 2002 as              suspended during the Second War.
     your                                  statute
     country?

8.   Where are         Please state the         §§ 311 Abs 2, 3,      In articles 197 and 198 of the Greek Civil Code.
     the rules for     statutory rules and      241 Abs. 2
     pre-              the containing           Bürgerliches
     contractual       code, act or the         Gesetzbuch,
     liability to be   like, in case that
     found?            pre-contractual          until 2002:
                       liability is statutory   Reichsgericht,
                       law. Please state        Entscheidungen in
                       the establishing         Zivilsachen, Band
                       court decision or        95, Seite 58;
                       decisions, in case       Bundes-
                       pre-contractual          gerichtshof,
                       liability is judge-      Entscheidungen in
                       made law.                Zivilsachen Band
                                                6, S. 333, Band 66.
                                                S. 54 et al.)

9.   What are the Which facts are               § 311 Abs. 2 Nr.      1. Negotiations in process.
     constituting necessary for pre-
     elements in contractual liability          1. the beginning of 2. Obligation to respect the rules of good faith and the
     accordance being applicable?               contract             lex mercatoria.
     to those                                   negotiations,
     rules?       If defined by                                      3. Damages caused by one of the parties to the other
                  statute, give the             2. the preparation party due to faulty behaviour during the negotiations for
                  citation in the act.          of the conclusion the conclusion of a contract.
                                                of a contract during
                                                which one party      Exceptionally, in some cases the liability of a third party
                                                allows the other to can be involved, such as the cases where the legal
                                                affect their rights, representative of one of the contracting parties
                                                objects of legal     conducting the negotiations has acquired the
                                                protection or        confidence of the other party, the disappointment of
                                                interests, with      which constitutes actually the ground of the pre –
                                       regard to the          contractual liability. In any event, the personal liability
                                       possible               of a third party is exceptional, since even if the material
                                       contractual            facts on which it is grounded have been done by a third
                                       relationship or        party acting in the name of one of the contracting
                                                              parties, it will be the liability of this contracting party
                                       3. contract-like       which will be involved, since the third party will be
                                       contacts.              usually his employee, his delegate etc.. or more
                                                              generally linked with him by a legal relationship
                                       § 311 Abs. 3           attracting the liability of the principal (articles 334 or
                                       Also possible in       922 of the Greek Civil Code).
                                       relation to people
                                       which are not
                                       supposed to
                                       become party of
                                       the contract.
                                       Especially when
                                       the third party
                                       strongly affects the
                                       negotiations or the
                                       contract by gaining
                                       a special
                                       confidence of one
                                       party.

10. Can            Can a party of      Yes                    Yes.
    breaking off   negotiations
    of             demand the
    negotiations   compensation of
    constitute a   expenses made
    liability?     due to relying on
                   the conclusion of
                   the contract?

11. Are          Please state those    Yes. Eg.               In case the breaking off of negotiations for the
    additional   requirements if       continuing or even     conclusion of a contract is faulty, contrary to good faith
    facts        existent.             starting               and / or lex mercatoria, the liability of the party
    required to                        negotiations           breaking the negotiations is involved, especially – for
    constitute a                       without the            example – in case his attitude was such as to allow the
    liability in                       intention to           other party to consider that the contract would actually
    that case?                         eventually             be concluded or – at least – that the breaking party had
                                       conclude the           serious intention to conclude it.
                                       contract or the
                                       evocation of the
                                       claimants trust in
                                       the conclusion of
                                       the contract and
                                       the breaking off of
                                       negotiations
                                       without a justified
                                       reason.

12. What are the Please specify if     §§ 280, 241            The consequences are that the faulty party is liable to
    legal conse- there are different                          full indemnification of the other party, i.e. to
    quences? legal                     The damage             indemnification covering both direct and indirect
                 consequences for      caused by the          damages suffered by the non – faulty party (article 198
                 different             violation of one’s     first paragraph combined with article 298 of the Greek
                    constellations.        obligations has to Civil Code).
                                           be compensated.

13. How is pre-     Since usually only As law of contract     There are different opinions as to the legal nature of
    contractual     law of contract and                       the pre – contractual liability. According to one opinion
    liability       law of tort are                           it is an “almost” (“quasi”, in french) contractual liability.
    qualified in    distinguished in                          If this is accepted, the liability under discussion is
    accordance      private                                   governed – by application of article 25 of the Greek
    to private      international law,                        Civil Code and also according to the relevant
    international   pre-contractual                           dispositions of the Treaty of Rome applying to
    law?            liability must be                         international contracts – by the Law to which the
                    assigned to one or                        contracting parties have submitted themselves or, in
                    the other, even if                        case no such a Law has been selected by the
                    otherwise                                 contracting parties, by the Law which is the most
                    distinguished from                        appropriate to the contract based on the specific
                    these fields of law.                      circumstances related to it. According to another
                                                              opinion, the pre – contractual liability is grounded on an
                    How is it treated in                      illicit civil act. If this is accepted, it is governed – by
                    terms of the private                      application of article 26 of the Greek Civil Code – by
                    international law of                      the Law of the State where the illicit civil act has taken
                    your country?                             place. Last, according to the now prevailing opinion,
                                                              the pre – contractual liability is a special kind of liability,
                                                              which is grounded directly and accrues out of specific
                                                              dispositions of the Law (articles 197 and 198 of the
                                                              Greek Civil Code) and is parallel to contract liability
                                                              and / or liability accruing out of illicit civil act(s). In case
                                                              this third opinion is accepted, the applicable Legislation
                                                              based on Greek Private International Law - will be - the
                                                              lex – fori combined – possibly – with the lex -
                                                              contractus or the lex – delicti, depending on the
                                                              specific circumstances of the case.

14. In             Please cite statute     Bundesgerichtshof Articles 25 and 26 of the Greek Civil Code and the
    accordance or court decision.          (BGH) in: Neue    prevailing authors’ opinion (such as G. Koumantos, Ap.
    to which                               Juristische       Georgiadis, M. Stathopoulos, Civil Law Professors).
    statutory rule                         Wochenschrift
    or court                               1987, p. 1141
    decision is it
    to be
    qualified like
    that?

15. How is pre-     For the purpose of As law of contract, The dispute arising from pre – contractual relationship
    contractual     determining the       thus disputes      must be submitted either to the Courts of the domicile
    liability       venue, is pre-        arising from pre- of the defendant or to the Courts of the place of
    qualified in    contractual liability contractual        implementation of the contract or to the Courts of the
    accordance      regarded as part of relationships have place where the illicit civil act(s) on which the liability of
    to              the law of contract to be started either the concerned party is grounded have been committed,
    international   or of tort or other? at the domicile of depending on which opinion will be adopted as to the
    civil                                 the defendant or nature of the pre – contractual liability or depending on
    procedure                             the place of       which aspect of such liability (liability based directly on
    law?                                  execution of the   the Law, contractual liability or liability accruing out of
                                          contract.          illicit civil act(s) will be considered to be the prevailing
                                                             one.

16. In         Please cite statute
    accordance
     to which       or court decision.
     statutory rule
     or court
     decision is it
     to be
     qualified like
     that?

17. What rules Please cite statute §§ 194, 195, 199              Article 198 second paragraph of the Greek Civil Code
    for the       or court decision. Bürgerliches                providing the mutatis mutandis application of the
    limitation of                    Gesetzbuch                  dispositions applicable to claims accruing out of illicit
    actions/time                                                 civil acts to claims arising out from pre – contractual
    are                                                          liability (an argument could be taken out of this in
    applicable                                                   favour of the opinion that the pre – contractual liability
    for pre-                                                     is a liability accruing out of illicit civil act(s).
    contractual
    liability?

18. What is the Please cite statute 3 years (§ 195               Five (5) years (article 198 second paragraph combined
    time-limit? or court decision. BGB)                          with article 937 first paragraph of the Greek Civil
                                                                 Code). To be noted that, in case the illicit civil act
                                                                 constitutes simultaneously a criminal illicit act
                                                                 submitted to a longer prescription, same applies also to
                                                                 the claim for indemnification due to pre - contractual
                                                                 obligation.

19   Any other                           Although now
     comments:                           defined by statute,
                                         pre-contractual
                                         liability is regarded
                                         as the same legal
                                         concept as before
                                         and as being only
                                         implemented into
                                         the civil code
                                         without a change.
                                         Therefore,
                                         reference to the
                                         court decisions
                                         and opinions in
                                         literature from
                                         before 2002 is
                                         often made for the
                                         purpose of
                                         interpretation. This
                                         weakens the
                                         authority of the
                                         statute’s wording




20   Do you have
     comments
    concerning
    the
    Regulation
    44/2001
    (Brussels I)

Catherine Cotsaki
Lawyer
12, Vassileos Constantinou Avenue
ATHENS 116 3
GREECE
Tel. : 0030210 – 7522518
Fax :0030210 – 7567520
cotsakilaw@internet.gr

								
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