THE CONCEPT OF PRE-CONTRACTUAL LIABILITY IN THE CIVIL LAW OF UZBEKISTAN

International Law, Business and Political Science Journal ISSN-L 3235-9799 E-ISSN 3235-9799 IF(Impact Factor) 13.24 https://journallaw.totalh.net/ Volume: 10. Issue 11 October 2025 1 THE CONCEPT OF PRE-CONTRACTUAL LIABILITY IN THE CIVIL LAW OF UZBEKISTAN Tolib Rakhmonov Lecturer of the Civil law Department, Tashkent State University of Law ORCID: 0000-0002-1954-8514 Abstract This article explores the concept pre-contractual liability and origins of the doctrine of culpa in contrahendo, analyzes existing scholarly approaches to its definition and examines expert opinions in the field. It also investigates the institution of pre-contractual liability (culpa in contrahendo) within the civil law of Uzbekistan. The author identifies and analyzes the fragmented legal provisions that partially regulate relations at the negotiation stage. Special attention is given to the principle of good faith as a fundamental tenet of civil law and a key criterion for party behavior during pre-contractual negotiations. Based on an analysis of the norms of the Civil Code of Uzbekistan, the article substantiates the possibility of applying the doctrine of culpa in contrahendo. From a comparative perspective, the author examines the legislation of Germany, Italy, and Russia, where the institution of pre-contractual liability has received formal legal recognition and practical development. The author concludes that the incorporation of similar provisions into the Civil Code of Uzbekistan is necessary to strengthen the principles of good faith, trust, and equality of participants in civil turnover, especially in negotiations, as well as to harmonize national law with modern European legal trends. Keywords: pre-contractual liability, culpa in contrahendo, good faith, confidentiality, negotiations, promissory estoppel, preliminary contract, freedom of contract, damages, civil liability. International Law, Business and Political Science Journal ISSN-L 3235-9799 E-ISSN 3235-9799 IF(Impact Factor) 13.24 https://journallaw.totalh.net/ Volume: 10. Issue 11 October 2025 2 Introduction In the context of a developing market economy, there is growing activity among participants in civil transactions. The main legal instrument for engaging in civil relations is the contract, which expresses the parties’ intention to acquire goods, perform work, provide services, etc. It is reasonable to consider the contract as the final result of the parties’ joint efforts. However, civil law allows us to distinguish a separate category of legal relationships that arise during the preparatory stage preceding the conclusion of a contract. These relations are called negotiations and transitional in nature. Their primary purpose is to create the necessary preconditions for the future emergence of a civil law contract. Civil law theory does not exclude the possibility of liability arising during the negotiation process for the conclusion of a contract, which is also known as precontractual liability. Pre-contractual liability is a legal institution that governs compensation for damages caused during negotiations prior to the conclusion of the main contract. In Uzbekistan, there are no direct legal norms regulating this area, which leads to legal gaps in the protection of parties’ interests at the negotiation stage. With the ongoing digital transformation and the growth of electronic interactions, the need for clear regulatory provisions governing this institution is increasing. The purpose of this article is to define the concept, features, and content of pre-contractual liability, as well as to determine its place within the civil law of Uzbekistan. Research Methods In the course of writing this academic article, a range of scientific methods were employed, including synthesis, analysis, induction, deduction, and the method of comparative analysis. Results Various legal facts can serve as grounds for the emergence of pre-contractual legal relations. However, not all activities of the parties at the preparatory stage can be International Law, Business and Political Science Journal ISSN-L 3235-9799 E-ISSN 3235-9799 IF(Impact Factor) 13.24 https://journallaw.totalh.net/ Volume: 10. Issue 11 October 2025 3 considered as a legal fact giving rise to civil rights and obligations. The moment of the emergence of pre-contractual legal relations should be considered a situation when the behavior of the parties (or one of them) clearly indicates the intention to conclude a contract or enter into negotiations on its conclusion. Such actions include sending a proposal to conclude an agreement (offer), signing various interim documents — protocols, agreements, memoranda of intent, carrying out agreed expenses related to the preparation of the transaction, initialing the text of the future agreement and other similar actions. Regardless of the form and procedure chosen by the parties for their negotiations, regulatory oversight of the process generally includes the following key principles:  Freedom of contract negotiations;  Good faith conduct by the parties during and after the negotiations;  The duty to provide accurate and complete information to the counterparty;  Establishing and maintaining confidentiality of exchanged information, including determination of consequences for its breach;  Allocation of negotiation-related expenses;  Liability for violations of the negotiation process. The content of pre-contractual legal relations is defined either by a general duty of proper conduct during contract formation, primarily, the duty of good faith negotiations or by a duty to conclude a contract in cases provided by law. The obligation to conduct negotiations in good faith represents a set of norms of proper behavior, the content of which may vary depending on the nature of the future contract, its subject matter, and the specific circumstances of the negotiations. First and foremost, the duty of good faith in negotiations is based on a fundamental principle of civil law—the principle of good faith. The Civil Code of the Republic of Uzbekistan (hereinafter — the Civil Code) enshrines a presumption of good faith on the part of legal participants. In particular, Article 9 of the Civil Code states that good faith, International Law, Business and Political Science Journal ISSN-L 3235-9799 E-ISSN 3235-9799 IF(Impact Factor) 13.24 https://journallaw.totalh.net/ Volume: 10. Issue 11 October 2025 4 reasonableness, and fairness of participants in civil legal relations are presumed [1]. The core issue lies in determining what constitutes good faith behavior at the negotiation stage, which remains one of the most debated topics in civil law. Legal scholarship has developed specific behavioral criteria that may be considered as meeting the principle of good faith in negotiations. These include, first, consistency of actions, which implies a need to clearly communicate the reasons for terminating negotiations and to indicate any circumstances or actions of the other party that may affect their continuation. Secondly, informational openness is deemed crucial, which implies a duty to disclose information that is significant to the counterparty, particularly when it would be difficult or impossible for them to obtain it independently, given the nature of the anticipated contract and the relative positions of the parties. In this context, good faith behavior means proper fulfillment of duties established by law and agreement during the negotiation phase. Such duties include: providing complete and accurate information to the other party; maintaining confidentiality of negotiations and refraining from using disclosed information for personal gain; bearing negotiation-related costs; disclosing relevant facts about participants or circumstances that, due to the nature of the future contract, must be communicated to the counterparty; and participating in the preparation of final or other related documents. Unfortunately, not all negotiation participants follow these rules, which may give rise to pre-contractual liability, often referred to as culpa in contrahendo. Pre-contractual liability is a specific institution of civil law, expressed in a party’s obligation to compensate the counterparty for losses incurred during the negotiation and contract conclusion stages as a result of a breach of pre-contractual obligations established by law or agreement. The scope of this liability includes cases of bad faith during negotiations, provision of false information, withholding material facts, or lack of genuine intent to conclude a contract. International Law, Business and Political Science Journal ISSN-L 3235-9799 E-ISSN 3235-9799 IF(Impact Factor) 13.24 https://journallaw.totalh.net/ Volume: 10. Issue 11 October 2025 5 In Uzbek legislation, the issue of pre-contractual liability remains insufficiently regulated. However, certain norms partially address this area. For example, Article 439 of the Civil Code of Uzbekistan establishes liability for bad faith conduct in the form of evading resolution of disagreements that arise when concluding a supply contract. During such contract negotiations, parties must be guided by the principle of good faith since the norm explicitly imposes an obligation to compensate for losses resulting from inaction in agreeing to contract terms. Therefore, if one party receives a proposal to settle disputed terms but takes no action to reach agreement and fails to inform the counterparty of its refusal to conclude the contract, it may be held liable. In addition, Article 377 of the Civil Code provides for liability for unjustified evasion from concluding a contract that is binding on the party. In particular, in accordance with this article, a party who does not have sufficient grounds for refusal, but avoids concluding a binding contract, is obliged to compensate the other party for the losses caused. An example is the unlawful refusal of a commercial organization to conclude a public contract (Article 358 of the Civil Code). Violations of good faith at the pre-contractual stage, including failure to disclose necessary information (duty of disclosure), deceit, or coercion may also serve as grounds for claiming actual damages if the contract is subsequently invalidated under Articles 122 and 123 of the Civil Code. Bad faith actions giving rise to pre-contractual liability may also include unjustified refusal to notarize or register a transaction, as stipulated in Article 112 of the Civil Code. In addition, Article 380 of the Civil Code provides for the possibility of collecting damages in the event of a participant’s evasion from concluding a contract based on the results of the auction or from signing a protocol on the results of the auction. Other provisions related to pre-contractual liability include Article 427, which imposes liability for unjustified refusal by a seller to conclude a retail sales contract, particularly if the refusal involves failure to provide the buyer with essential product International Law, Business and Political Science Journal ISSN-L 3235-9799 E-ISSN 3235-9799 IF(Impact Factor) 13.24 https://journallaw.totalh.net/ Volume: 10. Issue 11 October 2025 6 information. Despite the presence of these scattered provisions, Uzbek civil legislation still lacks a unified regulatory framework governing the conduct of negotiations and establishing liability measures for violations during that process. This legislative gap reinforces the need for formal implementation of the doctrine of culpa in contrahendo by introducing a dedicated article into the Civil Code of Uzbekistan. Discussion The historical roots of the doctrine of culpa in contrahendo trace back to the work of Rudolf von Jhering, who, in his 1861 study “Culpa in contrahendo”, was the first to substantiate the need to impose liability for harm caused during the process of contract formation, even in the absence of a valid agreement [2]. Jhering argued that the party acting in good faith, having suffered damages due to reliance on the appearance of a valid contract, should be entitled to compensation for what he called “negative interest”—i.e., actual losses incurred due to reliance on the negotiation, but without the right to claim lost profits. He asserted that from the moment negotiations begin, a special (quasi-contractual) relationship arises between the parties, generating mutual rights and obligations, the violation of which gives rise to liability for damages [3]. According to G. Faggella, the mere act of entering negotiations constitutes a legally significant fact, and their termination should only be justified by economic reasons. In all other cases, while terminating negotiations is theoretically allowed under the principle of freedom of contract, it should give rise to liability for bad faith conduct at the precontractual stage [4]. The doctrine of culpa in contrahendo developed gradually in German law. Jhering initially applied it only to violations occurring during contract conclusion, including cases where the deal was found invalid or not concluded. Faggella later expanded the doctrine’s scope to include situations where negotiations were terminated for non-economic reasons. F. Leonhard went even further, arguing that a party could be held liable for culpa in International Law, Business and Political Science Journal ISSN-L 3235-9799 E-ISSN 3235-9799 IF(Impact Factor) 13.24 https://journallaw.totalh.net/ Volume: 10. Issue 11 October 2025 7 contrahendo even when a valid contract had already been concluded [5]. German tort law did not impose liability for purely economic losses incurred in the preparation for a contract that was ultimately not concluded. Furthermore, the absence of a general tort clause prevented Jhering from classifying such liability under tort law. Consequently, Jhering concluded that the claim based on culpa in contrahendo was of a contractual nature. In his view, when parties begin negotiations, they take on not only an obligation to perform if a contract is concluded but also a duty to show readiness and take reasonable steps toward reaching the agreement. If a defect arises that hinders fulfillment of this secondary duty, it is the contractual obligation that is breached. Therefore, claims for damages in such cases should be considered contractual rather than tortious. Supporting this view are the provisions of §823 of the German Civil Code, which limit the scope of tort liability by protecting only certain interests and excluding cases where the damage is purely economic [6]. In contrast, Uzbek law approaches this issue differently. According to Article 986 of the Civil Code of Uzbekistan, damage caused by unlawful actions (or inactions) to a person or the property of a citizen, as well as damage to a legal entity, must be compensated in full by the person who caused the harm—including lost profits [7]. Thus, tort liability in Uzbekistan arises not only from harm to a person but also to property, marking a key difference from German law. Another argument against the contractual classification of this liability under Uzbek law is the absence of a contract between the parties — an essential prerequisite for contractual liability. Therefore, one should refrain from prematurely classifying culpa in contrahendo as contractual liability. This cautious approach is echoed in French civil law, which adopts a different legal framework. Unlike in Germany, where the doctrine of pre-contractual liability had to be developed to address legal gaps, French law did not face such deficiencies from the outset. International Law, Business and Political Science Journal ISSN-L 3235-9799 E-ISSN 3235-9799 IF(Impact Factor) 13.24 https://journallaw.totalh.net/ Volume: 10. Issue 11 October 2025 8 This is because tort liability in France has traditionally had a broader scope, allowing for the protection of parties’ interests already at the negotiation stage. According to Articles 1382–1383 of the French Civil Code, any act that causes harm to another creates an obligation to compensate for the damage. This liability covers not only intentional acts but also harm caused by negligence or imprudence [8]. Therefore, a party who suffers losses due to bad faith behavior during negotiations is protected through tort law mechanisms. Although the idea of culpa in contrahendo has long existed in French legal thought, it lacked direct legal codification until the major reform of contract law from 2005–2016, which introduced provisions that explicitly regulate liability for bad faith negotiation [9]. This reform also strengthened the principle of good faith, making it one of the cornerstones of modern French contract law. A third approach is found in common law jurisdictions. Here, the doctrine of culpa in contrahendo has not developed, and the issue of whether liability is tortious or contractual is generally not raised. This is due to the aleatory (risk-based) nature of negotiation in common law, i.e. each party is expected to act in its own economic interest and bear the risk of entering into negotiations with an unreliable partner. English courts, for instance, generally hold that parties in negotiations are free to pursue their interests by any lawful means, as long as their actions do not involve active misrepresentation. A party may even terminate negotiations strategically, anticipating that the counterparty may resume talks and accept less favorable terms. Thus, the duty of good faith in negotiations is often viewed as inapplicable in practice, as it contradicts the economic logic of deal-making [10]. Nevertheless, common law does not entirely ignore the pre-contractual stage. It prohibits intentional deception and addresses egregious conduct through legal tools such as pre-contractual documents (e.g., letters of intent, term sheets) and the doctrine of estoppel. When such documents are present, courts may find that a de facto contractual relationship International Law, Business and Political Science Journal ISSN-L 3235-9799 E-ISSN 3235-9799 IF(Impact Factor) 13.24 https://journallaw.totalh.net/ Volume: 10. Issue 11 October 2025 9 has arisen and impose corresponding legal obligations. Of particular importance is the doctrine of promissory estoppel [11], developed through case law. It holds that if one party gives another a clear and unequivocal promise, knowing that the other party will rely on it, and the other party does rely on it to their detriment, a court may require the promisor to uphold the promise if justice so demands. A landmark case is Hoffman v. Red Owl Stores, Inc., where a company promised to grant Hoffman a franchise if he met certain requirements. Relying on this, Hoffman sold his business, relocated, and made substantial investments. Later, the company unreasonably increased the required investment. The court ruled that the initial promises were binding, finding that Hoffman reasonably relied on them [12]. However, courts remain cautious: in the 1990s, only around 8% of promissory estoppel claims were successful [13]. It is important to distinguish between pre-contractual liability and a preliminary contract. These are not the same and should not be confused. A preliminary contract is a legally binding agreement in which the parties commit to concluding a main contract in the future on agreed terms (Article 361 of the Civil Code of Uzbekistan). Violation of such an agreement can lead to compelled performance of the promised contract. By contrast, pre-contractual liability (culpa in contrahendo) does not arise from an agreement, but from the fact of entering into negotiations. It is triggered by breaches of duties of good faith and confidentiality at the negotiation stage. Unlike a preliminary contract, there is no agreement to enter into a future contract, only a relationship of trust formed by the parties’ conduct. A preliminary contract is based on expressed mutual intent, and has the required elements of a contract (object, term, form, etc.). The obligation is concrete – to enter into the main contract under certain conditions and within a specified timeframe. The duties under culpa in contrahendo are general in nature: acting in good faith; International Law, Business and Political Science Journal ISSN-L 3235-9799 E-ISSN 3235-9799 IF(Impact Factor) 13.24 https://journallaw.totalh.net/ Volume: 10. Issue 11 October 2025 16 civil law, aimed at ensuring a balance between the freedom of contract and the protection of parties’ trust during negotiations. An analysis of the legislation of Uzbekistan shows that, despite the existence of certain provisions regulating bad faith conduct in the conclusion of contracts, there is no comprehensive legal framework governing pre-contractual relations. The current Civil Code of Uzbekistan does not explicitly recognize the doctrine of culpa in contrahendo, though its elements are traceable in the provisions on compensation for damages, bad faith, confidentiality, and refusal to conclude a contract. A comparative legal analysis of the laws of Germany, Italy, and Russia demonstrates that these countries have incorporated the duties of good faith behavior during pre-contractual stages into their systems of obligations law. Common to these systems is the imposition on parties of duties to act honestly, provide accurate information, maintain confidentiality, and compensate damages resulting from the breach of these obligations. In the context of Uzbekistan, the introduction of a structured legal regime for precontractual liability would help to fill existing gaps, reduce the prevalence of bad-faith practices in the market, and enhance legal certainty in civil transactions. References 1. Civil Code of the Republic of Uzbekistan // National Legal Database, 19.02.2025, No. 03/25/1031/0160 2. R. von Iering. Culpa in contrahendo, or compensation for damages in case of invalidity or non-conclusion of contracts // translated from German by M.B. Zhuzhzhalov // Bulletin of Civil Law, 2013, Vol. 13, No. 3, pp. 190–191 3. Zimmermann, R. The Law of Obligations: Roman Foundations of the Civilian Tradition. Cape Town, Wetton, Johannesburg: Juta & Co., Ltd., 1992. 1241 p. 4. Hirshbandt, A. The Problem of Pre-contractual Liability in Modern Civil Law Theory. Pravo (Law), Weekly Legal Newspaper, 1912, No. 43, p. 2285. // International Law, Business and Political Science Journal ISSN-L 3235-9799 E-ISSN 3235-9799 IF(Impact Factor) 13.24 https://journallaw.totalh.net/ Volume: 10. Issue 11 October 2025 17 URL: https://zakon.ru/blog/2013/6/1/g_fadzhella_i_r_salejl_v_izlozhenii_a_girshba ndta_preddogovornaya_otvetstvennos 5. Leonhard, F. Verschulden beim Vertragsschluße. Berlin, 1910. p. 42. 6. German Civil Code // URL: https://www.gesetze-iminternet.de/englisch_bgb/englisch_bgb.html 7. Civil Code of the Republic of Uzbekistan // National Legal Database, 19.02.2025, No. 03/25/1031/0160 8. French Civil Code // URL: https://www.fd.ulisboa.pt/wpcontent/uploads/2014/12/Codigo-Civil-Frances-French-Civil-Code-englishversion.pdf 9. France - The French Reform of Contract Law: The Art of Redoing Without Undoing // URL: https://digitalcommons.law.lsu.edu/cgi/viewcontent.cgi?arti cle=1202&context=jcls#:~:text=1%20%E2%80%93%20From%20the%20Reform% 20Project%20to%20the%20Ordinance.&text=The%20recent%20resignation%20of %20Christiane,is%20left%20to%20be%20seen 10. Walford v. Miles, [1992] 2 AC 128, [1992] 1 All ER 453, [1992] 2 WLR 174 (HL 1992) 11. Restatement (Second) of Contracts (1981). § 90; Jimenez, Marco. The Many Faces of Promissory Estoppel: An Empirical Analysis under the Restatement (Second) of Contracts. UCLA Law Review, Vol. 57, p. 669, 2010; Stetson University College of Law Research Paper No. 2009-14, pp. 698-692. // URL: https://ssrn.com/abstract=1373861 12. Robert E. Scott. Hoffman v. Red Owl Stores and the Myth of Precontractual Reliance, pp. 15–20. // URL: www.law.columbia.edu/sites/default /files/microsites/contract-economic_organization/files/working-papers/Hof fman%203.0%20final.pdf 13. Hillman, R.A. Questioning the “New Consensus” on Promissory Estoppel: An Empirical and Theoretical Study, 98 Colum. L. Rev. 580, 1998, p. 589. 14. German Civil Code // URL: https://www.gesetze-iminternet.de/englisch_bgb/englisch_bgb.html#p1050 15. Italian Civil Code // URL: https://www.wipo.int/wipolex/en /legislation/details/16608 16. Civil Code of the Russian Federation // URL: https://www.consultant.ru /document/cons_doc_LAW_5142/f5e55adcc2ef06ee9e5b7f57f0f3ca3d2ea8825c/ International Law, Business and Political Science Journal ISSN-L 3235-9799 E-ISSN 3235-9799 IF(Impact Factor) 13.24 https://journallaw.totalh.net/ Volume: 10. Issue 11 October 2025 18