Responsibility for Unfair Negotiation Under the Laws of Russia and France: A Comparative Legal Analysis

The article discusses the relatively new rules of Art. 434.1 of the Civil Code of the Russian Federation on negotiating and the question of the legal nature of pre-contractual liability. The answer to the question determines the norms to be applied if the rules of Art. 434.1 - general provisions on obligations or norms on tort - are insufficient. The question of the legal nature of liability at the negotiation stage is controversial not only for the domestic legal order. The principle of general tort laid down in the French Civil Code allowed scholars to extend the application of tort liability to cases of damages for guilty behavior at the negotiation stage even before the reform of French contract law. After the reform of French contract law (2016), rules on negotiations appeared in the French Civil Code. These rules on negotiations establish the general principles of negotiation: the principle of freedom of negotiations (their initiation, conduct, and exit from negotiations are carried out freely) and the principle of good faith in negotiations (the initiative, continuation, and termination of negotiations must meet the requirements of good faith (Article 1112 of the French Civil Code)), and also establish the limits of pre-contractual liability. According to French scholars, pre-contractual liability is tort in nature, unless the parties conclude an agreement between themselves to negotiate. In the latter case, pre-contractual liability will follow from the contract. The article provides a comparative legal analysis of the provisions of the Civil Codes of Russia and France, and different positions of scholars on the nature of pre-contractual liability. In the domestic legal system, pre-contractual relations are regulated by law, and they are not just a legal relationship, but an obligation. The basis for the emergence of such an obligation is certain actions of partners to enter into negotiations. Special rules of the Civil Code of the Russian Federation provide that actions taken to enter into negotiations (for example, if the conclusion of an agreement is mandatory for one party) or actions of both partners entail legal consequences - the obligation to negotiate in good faith. Violation of this obligation will be followed by liability in the form of damages. All this allows coming to the conclusion about the obligatory nature of the negotiating relationship and, accordingly, the obligatory nature of liability for unfair negotiation.

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