Melato, Eleonora C. --- "Precontractual Liability" [2011] ELECD 119; in De Geest, Gerrit (ed), "Contract Law and Economics" (Edward Elgar Publishing, 2011)

Book Title: Contract Law and Economics

Editor(s): De Geest, Gerrit

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781847206008

Section: Chapter 2

Section Title: Precontractual Liability

Author(s): Melato, Eleonora C.

Number of pages: 22

Extract:

2 Precontractual liability
Eleonora C. Melato


1. Introduction
Precontractual liability is not one of the most popular topics among Law
and Economics scholars and the conspicuous absence, from the major
Law and Economics textbooks, of precontractual liability as an independ-
ent field of analysis might indicate that the topic was traditionally consid-
ered to be non-problematic. However, as we will see, the issues relating to
the precontractual stage are not trivial and deserve a careful treatment.
The fact that, at first, mainstream Law and Economics scholarship failed
to address the particular precontractual issues resulting from problems
otherwise addressed in relation to the contractual stage, can be more
properly explained by considering the evolution of Law and Economics
as a discipline stemming essentially from the Anglo-American theory of
contract law.
Law and Economics in its modern form has been developed by
American scholars trying to reach new insights into American common
law. The common law has traditionally refused to attach legal con-
sequences to acts performed by the parties before the formation of a
contract and has subscribed to what has been called the `aleatory view'
of negotiations (Farnsworth, 1987). The classic bargain theory of con-
tract law has endorsed this view. It is not surprising, then, that Law and
Economics scholars might at first have disregarded the precontractual
stage as an autonomous field of inquiry and analysis. The general view
was that precontractual liability simply did not exist in the common law.
It is true that the economic ...