On the conceptual aspects of objectification of pre-contractual liability in the updated Civil Code of Ukraine

The article analyzes the conceptual aspects of objectification of pre-contractual liability proposed in the Concept of updating the Civil Code of Ukraine prepared by the Working Group on Recodification (Updating) of Civil Legislation of Ukraine established pursuant to Resolution of the Cabinet of Ministers of Ukraine No. 650 dated July 17, 2019. Due to the need to identify a specific subjective civil right to substantiate the nature of culpa in contrahendo as liability for abuse of right, the author makes concerns on the qualification of freedom of contract as an instrument of abuse of right. An alternative may be to recognize the existence of a pre- contractual legal relationship within which the abuse of right to negotiate and violation of the duty to negotiate in good faith take place. The uncertainty regarding the nature of pre-contractual liability as tort liability is caused by the indication of the dual nature of culpa in contrahendo. In this regard, the author draws attention to the specifics of the rule of general tort enshrined in Article 1240 of the French Civil Code as compared to Part 1 of Article 1166 of the Civil Code of Ukraine. It is noted that the experience of the Draft Common Frame of Reference cannot be considered as an unambiguous example of building an institute of pre-contractual liability under tort rules. At the same time, if the choice is made in favor of the tort model, it may be advisable to construct the rules of culpa in contrahendo among the rules of tort law and update the rule of general tort. Based on the individual nature of the relationship between the parties to the negotiations and taking into account the analysis of certain existing civil law provisions on contractual and tort liability, the author argues that pre-contractual liability may be considered as sui generis liability. The author suggests that violations of relative right and subjective civil duty should be considered as determining factors of property damage, which often takes the form of pure economic loss.