Pre-contractual Liability: Nature, Limits and Conflict-of-law Rules

The paper is devoted to the analysis of the nature, limits and conflict-of-law rules with respect to the pre-contractual liability. The author examines this question by applying the methods of analysis, comparison and comparative jurisprudence by, firstly, assessment of the existing substantive regulation of the nature and limits of pre-contractual liability in different jurisdictions; and, secondly, by assessment of approaches to the conflict of laws rules in the Civil Code of the Russian Federation and the Rome II Regulation, also paying attention to the problem of qualification. At the same time, the limits of pre-contractual liability are analyzed not only from the perspective of compensation for harm, but also in the context of the ratio between pre-contractual liability and the principle of freedom of contract. According to the results of the study, the author comes to the following conclusions. Firstly, the introduction of pre-contractual liability in Russian legislation should be assessed in a positive way. Herewith, the nature of pre-contractual liability should be determined with due regard to the specifics of a particular legal system; pre-contractual liability in Russia may be deemed a liability sui generis. Secondly, pre-contractual liability does not limit the freedom of contract, but, being a continuation of the principle of good faith, guarantees it. The optimal limits of compensation for harm are its restriction by negative interest with the possibility of compensation for the "loss of chance" in certain circumstances. Thirdly, the lack of unification of substantive regulation inevitably leads to the problem of conflict of laws harmonization. Fourthly, the optimal approach to conflict of laws rules is applying lex contractus as the main connecting factor, and connecting factors to the tort statute - as subsidiary ones.