From the common law to the civil law: the experience of Israel

TL;DRAbstract

Precontractual liability relates to liability from a specific temporal standpoint: the time before a contract has been created. Thus, the very definition of such liability is coupled with a dilemma: if a contract has not been created, why should precontractual liability be imposed? This liability apparently could not be based on contract, since a contract has not been created. On the other hand, if such liability is grounded, for example, either in torts or in restitution it might be incompatible with the contractual principle of no liability. The absence of contractual liability means that the parties are free not to deal. Liability based solely on negotiations might seem to override the negative freedom not to deal. This dilemma is well reflected in the different approaches adopted by the common law, on the one hand, and the civil or continental law, on the other hand.

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