미국에서의 계약 교섭 결렬에 따른 책임에 관한 법경제학적 검토

As the transaction in the modern society has become very complicated and various in its form, the process of entering a contract has become complex. Because of its complexity, negotiation takes a long period of time to complete a contract. Furthermore, parties in negotiation often enter a preliminary agreement to make a ex ante investment. Even though one party breaches the agreement, if the court concludes that such agreement is not a contract, then the non-breaching party who made investment to keep the agreement will have to bear the cost. In similar situation, the Korean court ruled that parties are free to break the negotiation under the freedom of contract doctrine, however, the breaking-negotiation-party might bear the liability for the expenses(reliance interest) if he gave the reasonable reliance to the other party and broke the negotiation without a reasonable ground where the other party under such reliance incurred the expenses. On the other hand, the U.S. law provides no general theory to admit the precontractual liability but there are various theories to be apply to the precontractual liability cases such as unjust enrichment, misrepresentation, promissory estoppel, and duty to negotiate in good faith. Recently, one of the recent law and economics analyses have developed a model showing that parties create preliminary agreements rather than complete contracts when their project can take a number of forms and the parties are unsure which form will maximize profits. Furthermore, it concluded that the imposition of precontractual liability would increases the social welfare, which could be the policy-basis of the liability.