영미법상 Pre-contractual Liability에 의한 손해배상에 관한 연구

A freedom of negotiation has traditionally been a cornerstone of contract law in common-law countries including the United States. Absent entering into an actual agreement, parties are free to negotiate, and to back out, without any risk of liability. This traditional common-law view of Pre-contractual Liability is sometimes referred to as the "aleatory view" of negotiations. According to this view, no protection against damages resulting from broken-off negotiations is afforded to a party who has entered into negotiations with the hope of achieving the potential gain that would result from ultimate agreement. Therefore, under the traditional view, a party to negotiations who suffers a loss due to improper behavior of the other party has no remedy if a contract was never actually agreed upon. Although the UCC and the Restatement(Second) of Contracts both impose a duty of good faith and fair dealing on parties to a contract, there is no similar duty on parties to mere negotiations. Although Pre-contractual Liability still does not arise based upon a general obligation or duty of good faith during negotiations, the U.S. courts have imposed liability under three primary theories. The first theory is Restitution, which involves the unjust enrichment of one party during the negotiation stage. The second is misrepresentation, which involves misinformation given during negotiations concerning an intention to come to terms. promissory estoppel is the third one, upon which Pre-contractual Liability may be imposed and involves a promise made by one party, and relied upon to the detriment of the other, in order to induce the latter to negotiate. Common-law courts, in imposing Pre-contractual Liability in these situations, restrict the measure of recovery to either the Restitution interest, which returns to the injured party whatever benefit the other party unjustly received, or the Reliance Interest, which puts the injured party back in the position it would have been in if he or she had not relied upon the promise or misrepresentation. The Expectation Interest is understandably not used because it is reserved for parties who have actually reached an agreement. In addition, the U.S. courts also have drawn up a series of preliminary agreements in anticipation of reaching final agreement on all points. For example, a court will find that preliminary agreements are binding upon the parties when they have either reached complete agreement on all issues that require negotiation, or have expressed mutual commitment to the major terms of the agreement, even if other terms still are not agreed upon. In the former case, the court will treat the preliminary agreements as a binding contract and injured parties will be entitled not only to their Reliance Interest, but also to their Expectation Interest and specific performance. In the latter case, the court will not treat the provisions as a completed contract, but may impose a duty of good faith upon the parties to conclude negotiations.