Culpa in contrahendo: dalla matrice jheringhina alle codificazioni europee e latinoamericane

This thesis explores the origins, theoretical foundations, and modern implications of the concept of culpa in contrahendo, as developed by the German jurist Rudolf von Jhering in his seminal 1860 essay Culpa in contrahendo, oder Schadenersatz bei nichtigen oder nicht zur Perfection gelangten Verträgen. Beginning with an analysis of the intellectual background of the Historische Rechtsschule (Historical School of Law) and Savigny!s theory of will and error, the study reconstructs Jhering!s methodological shift from the "jurisprudence of concepts” to a pragmatic and socially oriented understanding of law. The first part retraces how Jhering identified a gap in Roman law and contemporary legal doctrine concerning liability for damages arising during pre-contractual negotiations when the contract failed to be perfected due to error or nullity. His innovation consisted in extending contractual liability to the pre-contractual stage, thereby establishing a general duty of care between negotiating parties. Through the interpretation of key Roman sources—particularly the Digesta and Institutiones— Jhering demonstrated that Roman jurists had implicitly recognized the possibility of a compensatory action (actio ex empto or quasi ex empto) even when the contract was void or inexistent. The second part and the third part examine the theoretical and dogmatic implications of culpa in contrahendo, its reception by contemporary scholars, and its evolution in modern European and Latin American legal systems. The study highlights how this doctrine has profoundly influenced the development of modern pre-contractual liability, bridging the divide between contractual and tortious responsibility, and shaping the Principles of European Contract Law (PECL). Ultimately, the thesis underscores Jhering!s lasting contribution to the evolution of private law: his recognition that fairness and good faith must govern all stages of contractual relations, from negotiation to execution, ensuring protection against unjust harm even before a contract is formally concluded.