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'CULPA IN CONTRAHENDO' OR LIABILITY FOR CULPABLE CONDUCT IN PRE-CONTRACTUAL RELATIONS ('Culpa in contrahendo' alebo zodpovednost za zavinenie v predzmluvnych vztahoch)

100%
Stefanko J.
Právny obzor. Teoretický časopis pre otázky štátu a práva (Juridical Review. Theoretical journal for the questions of state and law)
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2008
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vol. 91
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issue 3
170-189
EN
One of the primary functions of any legal order is to provide the subjects of legal relations with legal certainty. This article aims to show the degree of protection that is to be granted to parties who negotiate in good faith and suffer loss without the actual contract having been concluded. In alpine countries a separate legal institute of 'culpa in contrahendo' developed as a 'bridge' between the tortuous and contractual liability, which helped to fill many concrete gaps in their legal orders regarding the liability constituted 'ex delicto'. Based mostly on the protection of good faith, the courts afforded wider protection to the pre-contractual parties according to the rules on contractual liability. In the common law countries, the duty to negotiate in good faith is explicitly disregarded; however, in similar cases the loss-suffering party is also given a remedy. The arguments show that, in the Slovak legal environment, majority of the concrete cases of c.i.c. would underlie the regime of liability pursuant to § 415 in connection with § 420 of the Slovak Civil Code. A lot of duties of the pre-contractual parties of the c.i.c.-nature collide with other institutes of the Slovak private law (e.g. mistake or fraud). In this sense, we do not recognize a denominate institute of c.i.c., yet the remedies of these situations could be measurably justified. It is questionable, whether a formulation of uniform legal institutes is needed, when different legal systems using different means come to the same conclusions. Being a part of many European legal orders, European and international documents (e.g. UNIDROIT Principles of Commercial Contracts, PECL and, above all, the Common Frame of Reference and others), the institute of pre-contractual liability should be recognized by Slovak scholars, legal practitioners and supranational contractors, as well.
2

HODNOTOVÁ ORIENTÁCIA NAVRHOVANÉHO SLOVENSKÉHO KÓDEXU SÚKROMNÉHO PRÁVA A ZÁSADA OCHRANY SLABŠIEHO SUBJEKTU

100%
Lazar J.
Právny obzor. Teoretický časopis pre otázky štátu a práva (Juridical Review. Theoretical journal for the questions of state and law)
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2015
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vol. 98
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issue 3
205 – 219
EN
The article is based on the assumption that from the legal philosophical aspect modern private law has undoubtedly a significant social dimension, in particular due to the Europeisation. It is manifested in the increased need of protection of weaker party in the private-law relations. The indicated social function of private law is also the basis of the value orientation of the prepared Slovak Civil Code. Adequately to the substantive scope of the code, this function is projected virtually into all its parts. In this way the protection of weaker party, in indivisible unity with the principles of free autonomy of will and legal equality of individuals, become a regular principle of private law, including its code. This principle should lead to the achievement of the real equality of private-law entities, which remains the fundamental principle of this subsystem of law. Ultimately, the purpose of the widest possible application of the protection of weaker party in law is to strike a balance of the interests of all stakeholders and thus achieve an equitable result corresponding to the rules of equity and good morals.
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