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  • Comparative Analysis of the Liability for Pre-contractual Negotiations Contrary to Good Faith and the Liability for Untrue Representations and Warranties

Comparative Analysis of the Liability for Pre-contractual Negotiations Contrary to Good Faith and the Liability for Untrue Representations and Warranties

Student: Kiseleva Yaroslava

Supervisor: Aleksander Vishnevskiy

Faculty: Faculty of Law

Educational Programme: Corporate Lawyer (Master)

Year of Graduation: 2021

The dissertation represents a comparative study of the liability for pre-contractual negotiations contrary to good faith (art. 434.1 of the Civil Code of the RF) and the liability for untrue representations and warranties (art. 431.2). The author's goal is to identify the legal nature of the types of civil liability and to establish the liability conditions. This will contribute to solving the practical problems of applying the types of liability mentioned. In addition to solving theoretical issues, the dissertation pays serious attention to the analysis of the existing judicial practice. (Statistical analysis resides in the Appendix). Based on the results of the study, the following conclusions are drawn: 1) The nature of the liability in both cases is non-contractual sui generis. The types of liability are potentially integrated under the “umbrella” of pre-contractual liability in a broad sense. Their similarity lead to the similarity of practical problems and solutions; 2) There shall be only three liability conditions: wrongfulness (violation of the right to rely), damages and causation (objective foreseeability of damages). The need to prove purpose to harm (and fault) shall be abandoned. The following “sets” of facts and models for the distribution of the burden of proof have been proposed: a) in relation to the art. 434.1, the claimant proves the fact of providing false information (the right to rely is refutably presumed) or the fact of withdrawing from the negotiations (the right to rely shall be established by the court); b) in relation to the art. 431.2, the claimant proves the fact of receiving of explicit and unambiguous representations and them being untrue (the right to rely is always refutably presumed). In relation to the both - the claimant has the right to submit evidence of the amount of damages. Causation is refutably presumed.

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