§ 311 BGB) and in other countries.
28
Accordingly, liability for pre-contractual fault
has also been included in the
Principles of European Contract Law
(PECL).
29
Of
course, the PECL do not cover classical tort cases of damage to property and bodily
injury. But even such cases may lead to contractual liability under German law if
the wrongful action was committed in the context of a contract or a business
relationship (§§ 241 (2), 280 (1) BGB).
30
Are these observations not clear
indications of the fact that a distinction between contractual and non-contractual
obligations can only be a pragmatic device, that there is no such distinction in
reality, and that it should not be made the basis of European private law?
Nobody doubts that doctrinal distinctions within the law are constructions of
the human mind; they do not correspond to an objective reality existing
independently of legal discourse.
31
Nevertheless, such distinctions may be more or
less helpful and they may find divergent degrees of consensus from a comparative
perspective. The distinction between voluntary (or contractual) and non-voluntary
(or non-contractual) obligations can be found in all European legal systems. It can
be traced back to Roman law
32
and even to the philosophy of Aristotle.
33
More
importantly, perhaps, the distinction is based on principle: even if it is doubtful
whether contract law is or should be based on the principles of autonomy and free
bargaining alone, contracts are legal instruments for voluntarily exchanging goods
and services.
34
Non-contractual obligations, in contrast, are the consequence of non-
voluntary events – unwanted at least from the claimant‟s perspective; and they arise
independently of a contractual relation. Hence, they must ultimately be based on the
protection of rights and interests that are independent of a contractual promise.
At the same time, there is a very simple explanation for the fact that this
distinction may appear blurred on a closer look at the specific legal systems of
Europe: the development of the law is not always determined by a principle of
conceptual neatness. This is nicely shown by the peculiarly broad conception of
contractual liability under German law. Practising lawyers and especially judges are
25
Von Bar
(fn 2) vol I [3];
J Cartwright/M Hesselink
(eds), Precontractual Liability in European
Private Law (2008).
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