论因过失违反先合同说明义务的责任适用

先合同说明义务之违反有缔约上过失责任及恶意欺诈规则的适用,两者在适用的法律后果上具有相似性。在故意情形,两者得自由竞合,由当事人择一主张;在过失情形,缔约上过失责任的适用将导致恶意欺诈的主观故意要件被规避。在现行法上,我国《合同法》第42条第2项明确限定缔约上过失责任仅适用于故意违反先合同说明义务场合,而排除缔约上过失责任在行为人仅具过失违反先合同说明义务情形的适用可能性。在缔约上过失责任之外,重大误解具备适用于因过失违反先合同说明义务场合的可能性与合理性,因此能够在过失情形提供功能上的补位。

The Application of Liabilities of Breach of Duty to Inform in Case of Negligence in the Contracting Phase

The duty to inform in the contracting phase can effectively eliminate the information asymmetry existing between the subjects of transactions in the market and thus safeguard the contractual mechanism. One of the core problems is the application of the liability after the violation. In general, culpa in contrahendo and malicious fraud can both be applied in breach of the obligation of the duty to inform in the contracting phase, so there will be a concurrence of liabilities between culpa in contrahendo and malicious fraud. Both of culpa in contrahendo and malicious fraud may lead to the cancellation of the contract between the parties, and return the interests of both sides to the state before the contract is concluded. Therefore, culpa in contrahendo and malicious fraud have similar legal consequences. However, the requirements of the subjective element of culpa in contrahendo and malicious fraud are not the same, as the former requires intention or negligence, while the latter only requires intention. Therefore, in the case of negligent breach of the duty to inform in the contracting phase, due to the application of culpa in contrahendo, the free competition between the two will lead to the intentional elements of malicious fraud being circumvented. For the applicable dilemma in the case of negligent breach of the duty to inform in the contracting phase, the academic community has offered a wide range of possible explanations, but each of them has its own corresponding limitations. Some scholars hope to cover the case of "negligent fraud" by explaining the intentional elements in malicious fraud, but such explanations have obviously gone beyond the meaning of "intentional" itself and at the same time do not conform to the definition of intentional elements of malicious fraud in the traditional theory of civil law. In the comparative law, German scholars tried to limit the application of culpa in contrahendo in the case of negligent breach of the duty to inform in the contracting phase by intentional liability, existence of specific property damage, etc. However, their theoretical system still lacks harmony and fails to reach a consistent conclusion. In the current law of China, Article 42(2) of Contract Law denies the possibility of the application of culpa in contrahendo in the case of negligent breach of the duty to inform in the contracting phase, and requires the feason to be intentional. Although it is still possible to explain the possibility of applying culpa in contrahendo by invoking the exhaustive clauses of article 42(3) of Contract Law, however, based on the principle that special rules take precedence over general provisions, and taking into account that the application of culpa in contrahendo will lead to the intentional elements of malicious fraud being circumvented, it should be considered recognized that the current law in our country negates the application of culpa in contrahendo in the case of negligent breach of the duty to inform in the contracting phase. However, the responsibility of the feason in the case of negligent breach of the duty to inform in the contracting phase is not only conducive to protecting the freedom of decision, but also to enhancing the overall trust of the parties concerned in the legal order. In addition, this is also the trend of comparative law. Therefore, in case culpa in contrahendo cannot be applied, other means should be found to provide functional alternatives and corresponding relief for the counterpart. In addition to culpa in contrahendo, “major misunderstanding” is one reasonable choice in the case of negligent breach of the duty to inform in the contracting phase. In such a case, due to the mistakes made by the counterpart, the one who claims a major misunderstanding of the right of revocation does not have to bear the reparation of trust interests, but instead, the rules of contributory negligence can be applied to this party. As a result of this application, the lack of trust and benefit compensation rules in the case of major misunderstandings in the Chinese law will not be an obstacle to advocating a major misunderstanding in the case of negligent breach of the duty to inform in the contracting phase.