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A Role For Tort In Pre-Contractual Negotiations? An Examination Of English, French, And Canadian Law
Published online by Cambridge University Press: 17 January 2008
Abstract
The common law has traditionally regarded the question of pre-contractual liability as a matter of contract formation.2 Where the claimant is able to satisfy the rules of offer and acceptance, consideration, an intention to be bound, and certainty, contract law possesses a number of tools capable of resolving disputes arising prior to contract. For example, the courts will utilise the law of misrepresentation and mistake and, if necessary, imply terms to respond to questions such as the effect of pre-contractual representations or whether the claimant should be paid for work commenced prior to contract.3 Notably where a transaction between two commercial parties has been executed, the English courts have shown themselves particularly willing to intervene and ensure the validity of the agreement reached between the parties.4
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- Copyright © British Institute of International and Comparative Law 2003
References
1 A draft of this article was presented at the SPTL conference in Leicester on 10 Sept 2002 and at a staff seminar at Queen Mary, University of London. The author would like to thank the Torts section, members of the Department of Law at Queen Mary, in particular Catherine Macmillan, and Professor John Bell for their helpful comments. Any errors remain those of the author alone.Google Scholar
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90 See, eg, The Norsk, above in which Justices McLachlin and La Forest engage in an overt policy debate. For a critical discussion of the economic analysis used by the court, see Cohen, D ‘The economics of Canadian National Railway v Norsk Pacific Steamship’ (1995) UTLJ 143CrossRefGoogle Scholarand Siebrasse, N ‘Economic analysis of economic loss in the Supreme Court of Canada’ (1994) 20 Queen's LJ 1,Google Scholar who both favour the dissenting judgment of La Forest J. Contrast Feldthusen, B and Palmer, J ‘Economic loss and the Supreme Court of Canada: An economic critique of Norsk Steamship and Bird Construction’ (1995) 74 Can Bar Rev 427, who argue that whilst the judgment of La Forest J is a step in the right direction, there are other economic considerations which preclude recovery.Google Scholar
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127 The period preceding the final contract, for a long time considered a period of absolute freedom of contract for the parties, thus becomes rather tricky in practice.Google Scholar
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129 Chauvel, note to Com 7 Apr 1998 D 1999.514, 515.Google Scholar
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