Withdrawing from Pre-contractual Negotiations and the Duty of Good Faith Harmonising European Views

In recent times, the issue of harmonisation in the European legal context has provided much
debate. In this article, we closely examine the possibilities of harmonisation in the area of European
contract law, an area of law as important because of the fundamental nature of its legal principles
to any legal system as for the vital role it plays in producing a seamless cross-border transactional
market. This article deals with the issue of the duty of good faith in pre-contractual negotiations,
taking as its starting point the key Dutch case of CBB/JPO. Are the efforts of parties in negotiating
wasted, if no final contract is formed? If not, what are the implications and bases of a principle
awarding remedies in such a situation? This article is the first of a series of two. Each of the articles
in the series focuses on a different area of contract law. However, both deal with areas in which
there is marked disagreement between the various European legal jurisdictions. Moreover, they will
both have as their focus a two-fold question: first, what is the most ideal legal position to adopt;
and secondly, what difficulties may be encountered both doctrinally and practically if that ideal
position is to become the applicable standard in all European jurisdictions.
Vegl: CBB/JPO Hoge Raad 12 augustus 2005