IKISUTARTINĖS ATSAKOMYBĖS KVALIFIKAVIMO PROBLEMA: SUTARTINĖ, DELIKTINĖ AR SUI GENERIS.

The recent Lithuanian legal doctrine and court practice shows discrepancies in cases dealing with pre-contractual liability. There is no consensus on this issue in the legal writings as well. Opinions vary especially on the question of which type of liability rules - contractual, tort or sui generis - should be applied in the case of breaking off negations in bad faith. In this article the authors argue that in order to ensure legal certainty and stability it is necessary to establish clear scope of pre-contractual liability and to identify precisely the liability rules which apply in such cases. Research on the historical developments on pre-contractual liability in different European countries shows that most legal systems recognize the need to govern the parties' relations at the contract formation stage. However, until today legal systems vary on the approaches towards it, especially in respect of its scope and on the way it should be imposed: some civil law jurisdictions generally recognize this duty as a general principle of law, and some of them provide for specific provisions establishing its framework. In the second part of this article it is discussed whether the rule requiring the parties to negotiate in good faith and the claim for pre-contractual liability of a defendant is a matter of tort, contract or quasi-contract. The authors argue that in order to qualify pre-contractual liability it necessary to identify the nature of negotiations and the factors determining the scope of liability for their breach. Taking into account the specific legal rules on obligations of parties in pre-contractual relationships established in the Civil Code of Lithuania, as well as the current court practice on this issue, the authors conclude that there is no sufficient justification to apply in full contractual or tort legal regimes for the pre-contractual stage. Firstly, an ultimate factor determining the establishment of liability in precontractual stage is reliance between the negotiating parties. It is recognised that in such relations the aggrieved party may recover only the expenses incurred during the negotiations and the lost opportunity to conclude another contract with a third person (a so-called reliance or negative interest), but it is not possible to claim the profit which would have resulted had the original contract been concluded (a so-called expectation or positive interest). It proves that there is no enough ground to qualify pre-contractual liability as contractual. Otherwise, it is possible to violate the parties' autonomy and their freedom of contract. Only if the relations of the parties may be qualified as contractual, will all the remedies for breach of contract be available to them, including the remedy of the right of performance. Secondly, under a general rule, an understanding that negotiations involve inevitable risk and that the parties are free to contract means that no responsibility could be established. Therefore, the proper question to ask is whether at the end of the negotiations the parties have concluded a contract. Only if a contract is formed, the courts will focus on the contract to understand the relations and obligations between the parties. In case of ambiguity, the court may analyze other evidence. If no contract is formed, the obligations between the parties usually have to be treated under tort law. However, a tort regime sometimes is not sufficient for the protection of the interest of the aggrieved party. Besides, when the parties conclude a preliminary agreement the extent of liability is set not only by the rules of the statute but also by the preliminary agreement of the parties.… [ABSTRACT FROM AUTHOR]