Från förhandlingsfrihet till förhandlingsbundenhet. Ansvarsgrundande förklaringar och beteenden i prekontraktuella tvåpartsförhållanden och vid avtalsingående (From freedom of contract to the binding force of contracting. Liability for inducing reliance by statements and behaviour in precontractual situations, contract negotiations and contracting)

G4 Doctoral dissertation (monograph)

Internal Authors/Editors

Publication Details

List of Authors: Paula Klami-Wetterstein
Publisher: University of Turku
Place: Turku
Publication year: 2016
Number of pages: 249
ISBN: 978-951-29-6425-3
eISBN: 978-951-29-6426-0


The thesis evaluates the established judicial proposition stating that contract negotiations

are not binding. The starting-point for the study is the commonly expressed

view that the principle of freedom of contract comprises a freedom to

negotiate and that the freedom to negotiate entails a non-liability for any costs

occurred during negotiations. The study argues that this logical chain of reasoning

is antithetical to the underlying principle of

(international) principle of good faith and fear dealing.

The present dissertation seeks to explore the grounds for liability in contract

negotiations and contracting by analysing the contract law regime and assessing

case law from the Finnish Supreme Court. The analysis includes case law from

lower courts, as well as comparisons with other Scandinavian jurisdictions. The

study begins with a discussion on the theoretical background of contract negotiations

and contracting (Chapter Two), i.e., the mechanism of contracting as a part

of the contract law system. Chapter Three examines the normative framework for

(pre)contractual statements, duties and liability. Chapter Four analyses the interpretation

of statements in light of the normative elements of contract interpretation.

Chapter Five explores the prerequisites for

or behaviour, while Chapter Six discusses the significance of external facts

with regard to the criteria for the construction of reasonable reliance.

My research suggests that there is, indeed, a certain (pre)contractually binding

force (‘

Contract negotiations are not binding

representations made during the course of the negotiating process which envisage

the contractual relationship at a later stage may be considered as grounds for liability.

The legal effects of these statements cannot be seen exclusively within the

category of contract (“promise”) or tort (“misleading”). Instead, statements may

be considered as

where these statements do not meet the criteria for offer or accept. Along

with providing a framework for the legal assessment of reliance-based (pre)contractual

liability, the dissertation aims at harmonising the notion of reliance-based

loyalty and the widely acknowledgedjustifiable reliance, based on statementsförhandlingsbundenhet’) inherently built into the negotiation mechanisms.per se. However, the actual propositions orbinding insofar as they incur a justifiable reliance – even in situations


(precontractual or contractual) liability – a middle category in contract law – with

the existing contract law doctrine, nevertheless acknowledging the existing distinction

between the categories of contract and tort.

Keywords: contract negotiations, culpa in contrahendo, good faith and fear dealing,

letter of intent, loyalty, precontractual liability

Last updated on 2020-05-07 at 04:57