PhD student: Dr T. Hick

Promotor: Mrs Prof S. Stijns

Duration: 1/9/2018 - 31/8/2022

PhD defence: Leuven, 4/6/2024

Abstract:

In his doctoral dissertation, A European Structure for ‘No-Contract Law’ in the 21st Century, Tom Hick deals with cases of failed contract negotiations. From a fundamentally comparative angle, he uncovers the structure of liability for contract negotiations throughout different European legal systems, namely Belgian, Dutch, French, German, and Italian law. He is able to show, that the structure of liability for the breaking-off of contract negotiations responds to the same logic throughout these different legal systems. At the same time, he also shows that in much of the reasoning around this liability, an obligation to contract is pre-supposed. He suggests to, instead of covering-up this implied obligation to contract, openly discuss it. This should allow to reflect upon the grounds on and conditions under which such an obligation can be granted. In an effort to provide a fruitful starting point for this discussion, he suggests basing such an obligation to contract on considerations of dependency instead of some loosely defined considerations of legitimate expectations as is generally done today. Indeed, relying on dependence appears justified in a contemporary context where imbalances of power relations increasingly are taken into account in the contractual realm (contract law), but not in cases of absence of a contract (no-contract law). Hence, and to remedy this lack of attention for imbalances of power in a no-contract scenario on the level of the law of obligations, an obligation to contract based on dependence appears necessary. With the ambition to overcome some conceptual and practical difficulties inherent to an obligation to contract, Tom Hick suggests an Obliegenheit to contract – a mechanism which allows to maintain party autonomy while setting incentives in such a way as to stimulate reluctant parties to re-engage in contract negotiations and eventually to contract. To offer alternatives to remedies based on liability law, he also explores the availability of undue payment in no-contract cases. This leads to the finding that in some types of cases where establishing liability will often be difficult for want of a clear fault, undue payment can offer a valuable alternative for parties intending to recover expenses made in the negotiation process (f.i. performances made believing that a contract had already been concluded).