2° - The rarely admetted granting of expectation interests
65. In the main, expectation interests are based on the culpa in contrahendo doctrine. However, two fundamental questions have to be distinguished. The injured party may be tempted to request a compensation either because by the loss of an opportunity to conclude the contract or because of the loss of the opportunity to conclude a contract with a third party. The first basis seems to be refused by nearly all legal systems (a) while the second one may be received occasionally (b).
a. The general rejection of compensation for prejudices caused by the non conclusion of the conclusion of a contract
66. Is it possible to compensate the prejudice due the non-conclusion of the contract? Can we imagine that damages will be granted with regard to the financial stake of the contract that was expected to be concluded? The answer seems to be negative and common sense could indicate that it should not be taken to that point. Such a situation would effectively be financially equivalent to the conclusion of the contract. However, is it possible to compensate the loss of the opportunity to sign the contract? This compensation will necesserally be inferior to the financial stake that was hoped, because there is also a chance that the contract would never have been concluded. French case law seemed, at a certain time, attracted by this type of solution89.
Remarkably, French doctrine showed a lot of enthusiasm toward this idea90, even though it was still giving a rise to few reservations91.
67. However, French Supreme Court had to opposer herself to this type of solution. In November, the 26th of 2003, a French court of appeal decided in its “Manoukian”92 ruling that “the constitutive circumstances of a blameworthy conduct committed in exercise of the right of unilateral rupture of pre-contractual negotiations is not the cause of the prejudice consisting in the loss of the opportunity to obtain the gains that could have arisen from the conclusion of the contract”.
Consequently, French law does not admit the existence of a prejudice resulting from the loss of profits caused by the non-conclusion of a contract. This position is reiterated, for instance, in a decision of the Commercial Division of the French Supreme Court dated March, the 1st of 2011 (no. 10-12268). Here, the Supreme Court nullified the decision of the court of that granted a EUR 100,000.00 compensation for the loss of the chance of the conclusion of the contract. In detail, the court of appeal relies on the development of negotiations as well as on the fact that the parties already agreed on some important points.
Indeed, the Supreme Court held that “in the absence of a definitive and determined agreement, the prejudice incurred by M. X.… only included fees caused by the negotiations and fees of a necessary prior assessment. In contrast, the prejudice included neither the gain, that could be generated in case of the conclusion of the contract and could be taken from the activities of the company “ATS studios”, nor the loss of the opportunity to obtain the gain”.
The solution that the Supreme Court adopted has been integrated to the 2008 Ministry of Justice obligation reform project. Indeed, Article 20 pas.3 provides: “The damages allowed should not aim at compensating the loss of the profits expected from the unconcluded contract”.
68. Nevertheless, this does not prevent legal disputes before French courts about the aforementioned compensation of fees caused by negotiations (legal fees, for instance, but moreover, some pre-contractual negotiations may generate high investigations for computer and industrial installations, compliance costs, etc.), and the compensation of other prejudices that is awarded by judges.
69. Another decision of the Paris Court of appeal, pole 5, Ch. 5, dated November, the 25th of 2010 may be mentioned, holding that “the judgment will be confirmed considering the fact that it held that the Pergo companies had abusively broken off the pre-contractual negotiation between the parties, and therefore, on March 2002, the company Décor Tapis was obliged to break off an agreement concerning the occupation of Metz premises; and due to the fact that the prejudice incurred by Décor consists in investment made in pure lost and in the loss of profits based on this project whose success was not ensured. Therefore, the court appreciated an amount of EUR 100,000.00”. However, it is important to point out that the aforementioned contract had already been partly, which is getting us far from the of the hypothesis of a simple breaking off of negotiations.
70. Of course, Belgian law applies the French solution. Generally, the loss of expected advantages based on the contract, that would have been concluded if negotiations had les to a positive result, cannot constitute compensatory damages93. The main idea is that the negotiations do not engender a right to conclude the contract94. In contrast, the doctrine does not necessarily agree with this approach95.
71. Similarly, the Luxembourg’s Court of appeal legal precedents are limiting the compensation of the damage caused by the rupture of negotiations to fees generated by an unsuccessful negotiation and prior studies and expenses made by the other party96. Nevertheless, some Districts Courts would grant the expected gain of the non-concluded contract97.
72. German case law applies the same solution. In pre-contractual situations, the injured party will not be able to recover the value of the promised performance, explicitly the expectation interest (Erfüllungsinteresse, positives Interesse) because this claim implies the definite conclusion of the contract98. Prior to conclusion of the contract, the injured party is entitled to achieve the expectation interest only on condition that the parties had concluded a binding pre-contract concerning the conclusion of the principle contract. However, a letter of intent does not include a binding stipulation concerning the forthcoming principle contract but only documents the sincerity of the parties’ intention regarding the future principle contract. In this regard, it is crucial to distinguish clearly between a pre-contract and a letter of intent99.
b. The remedy for the loss of the opportunity to conclude the contract with one or several third parties
73. The contract signed in order to frame the negotiations generates some expectations that entitle the aggrieved party to compensation. Exceptionally, the German law recognises this type of compensation.
In German law, the damages recoverable under articles 311 II, 241 II, 280 I BGB also include ‘positive interest damages’ in exceptional cases. Such favourable circumstances arise when the injured party proves that it would have concluded a more favourable contract if the breach of the pre-contractual duty had not taken place100. Finally, the loss of reputation caused by an arbitrary termination of the pre-contractual negotiations causes claim for damages in favour of the injured party provided that the injured party suffered an economic loss and this would not have happened without the blameworthy conduct of the injuring party.
74. Nonetheless, beyond the culpa in contrahendo doctrine, courts of various countries recognise the possibility to obtain damages for the loss of the opportunity to conclude a contract with a third party on the same or more advantageous conditions. Italian and French law have the same approach. A decision of the Commercial Division of the French Supreme Court dated April, the 7th of 1998 ruled that “by deciding that company P had, because of the blameworthy conduct of company S, immobilized in pure loss its patented process for four years without having the possibility to negotiate with other parties during this period, and due to the fact that company S disclosed its know-how, and by assessing damages deriving from this situation, the court of appeal legally justified her decision”.
75. The time that the party spends in order to conclude a contract represents lost time in regard to the possibility of conclusion of a contract with a third party. Evidently, a chance has been lost. This lost opportunity to conclude a contract with a third party has nothing to do with the breaking off of the contract, but instead, with the conduct of the author of the rupture, which means with the expectations of a probable reaching of an agreement that he engendered in the other party’s mind. Finally, these expectations dissuade the other party from looking for other contractual partners.
76. The aggrieved party has to prove that a loss of a chance is real. If the behavior of the injuring party actually dissuades the other party from the opportunity to contract with another party at the same time, it will be necessary to prove “that the victim would have conclude the contract with the third party and would have benefit from it”101. Consequently, a complaint had been rejected for the reason that the injured party “did not substantiate its opportunity to conclude a contract with the third party”102.
77. Swiss law recognizes the compensation of the lost gain under the condition that the contract with the third party could have been concluded. Still, to obtain compensation, the injured party has to prove that the contract would have been concluded surely and that the only reason of its rejection was the fact that the party had ongoing contractual negotiations with the party he is claiming damages to. “Of course, this kind of compensation103 can only be brought in court in a few exceptional cases”.
CONCLUSION
78. As a conclusion for this study, we will note that almost every legal system is relying on the freedom of contract principle. Everyone is therefore absolutely free to conclude or end the negotiation that he entered in for the takeover of a company. The will of the parties to negotiate in a frame that generates obligations can be expressed in a letter of intent that contains pretty universal clauses. Beyond these remarks, it has to be underlined that different legal systems do not have the same approach of the breaking off of negotiations phenomenon. Common law countries are hostile to the idea of a sanction for the breaking off, except maybe in very specific circumstances. European law principles and some national legal systems impose an obligation to negotiate in good faith that arises from specific provisions of the law, an obligation that leads to the observation of some misbehavior.
79. If the bases of the actions in compensation are different, the results of it are always modest, which is pretty logical considering that the judge wants to preserve the freedom of contract., In the majority of legal systems, it seems possible to compensate the damnum emergens. On the other hand, about the lucrum cessans, the only conceivable compensation is the basis of the loss of an opportunity to negotiate with a third party: but this way is tight.
Dostları ilə paylaş: |