Fiorenzo Festi

The author claims that some of the recurring statements on matter of pre-contractual liability due to withdrawal from negotiations, which they usually run amongst the interpreters, deserve a review. Accordingly, first of all, the statement that the characterization of the liability, as contractual rather than non-contractual, does affect the burden of proof, to be ruled, on the contrary, on the basis of the criterion of availability of the means of proof. Moreover, pre-contractual liability, in case of withdrawal from a negotiation, does arise when the techniques used to withdraw disclose, ex post, previous unfair behaviour. Hence, what really matters here it’s the reason behind the withdrawal, that it can be subjective, but it has also to be reasonable; and reasonableness has to be judged, under the circumstances, taking into account the development of the negotiation too. Again, the author thinks that the concept of reliance is not necessary to decide upon compliance with good faith, nor it is appropriate, as it persuades the interpreter to pay more attention to the protection of the interests of the relying party rather than to the objective unfairness of the conduct. Not to mention the fact that, when it comes to the assessment of damages, it should be taken into consideration the principle that no obligation to complete a contract arises without any specific agreement on the subject matter.