The Duty of Care in Pre-Contractual Negotiations

Pre-contractual negotiations, as the main platform for creating legal obligations, can involve risks for the parties and lead to non-conclusion of the contract, spending preliminary expenses by one party, or concluding a shaky and breached contract. The two parties must be careful about what they say or do in the pre-contractual period; Because according to them, an action may be taken by the other party and as a result, the other party to the contract will be harmed. The duty of care is a legal obligation that is justified in order to avoid the occurrence of such damage to the other party through the fault of one party. This duty can be justified as a condition or implicit agreement in entering the pre-contractual stage. Economically, it prevents market failure and expands trading confidence. There is disagreement about the nature of this task. According to the classical approach, it is closer to non-contractual liability. However, according to a new approach, entering into negotiations can be considered as an agreement or an implicit condition for observing the duty of care during negotiations and a kind of contractual liability. In case of violation of this duty, according to the situation of guarantees such as, obligation to return to negotiation, compensation, obligation to conclude a contract and termination or cancellation of the contract can be reviewed and analyzed. This duty remains unknown in Iranian law and Islamic jurisprudence. However, the duty of care can be determined based on the general rules of civil liability or the inference of an implicit contract based on the observance of the duty of care, as well as Article 35 of the Electronic Commerce Law and the guarantee of its implementation.