Pre – Contractual Phase
Tags: afbreken onderhandelingen, breaking off negotiations, compensation, contractsbelang, contractual interest, goede trouw, good faith, negatief contractsbelang, negative contract interest, positief contractsbelang, positive contract interest, pre - contractual phase, precontractuele fase, preparation, schadevergoeding, voorbereiding.
The pre-contractual phase is the phase of negotiations that precedes the actual conclusion of a contract. There is no offer and acceptance yet. The relations in the pre-contractual phase are governed by the principle of good faith of the parties.
Breaking Off Negotiations
The starting point is that parties are allowed to break off negotiations at this stage. However, the negotiations may be at such an advanced stage that the other party could trust that a contract would be concluded. The party that breaks off negotiations at this advanced stage may then be obliged to compensate the damage suffered by the other party.
Determination of Damage: Contractual Interest
If the negotiations are terminated at such an advanced stage, the other party can claim compensation. The other party then has the choice between the “negative contract interest” and the “positive contract interest”.
The negative contractual interest means that the terminating party must bring its counterparty into the financial situation in which it would have been if no negotiations had taken place in its entirety. All costs incurred by the other party concerning the negotiations must be reimbursed.
In the positive contractual interest, the terminating party must bring its counterparty into the financial situation in which it would have been if a contract had been concluded.
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