PP991
Analítico de Periódico
PROCIDA, Antonino, e outro
The notion of obligation as a complex relationship / Antonino Procida, Mirabelli di Lauro
Annuario di Diritto Comparato e di Studi Legislativi, v.7 (2016), p.417-471
DIREITO DAS OBRIGAÇÕES / Alemanha, TEORIA GERAL DAS OBRIGAÇÕES, DIREITO COMPARADO
Investigation into the modern theory of obligation: from the inadequacies of the German system in terms of obstacles to properly performed contracts arising typically from frustration and delay down to attempts to pursue remedies. This study investigates the reasons underlying the growth of contractual obligations and examines the system of Schutzpflichten and Nebenpflichten as codified by the Schuldrechtsreform of 2002. It also takes a comparative look at the main issues that the area of obligation and its complex structure now place before legal science — namely, performance, obligations of protection, obligations of sécurité of ‘best effort’ and ‘result’, obligations without performance, social or negotiated contract, protective effects of the contract with regard to third parties, imputation models of liability, and so on. Following a discussion of a possible site for culpa in contrahendo in the area of contractual liability; the themes of performance ‘not due’ (though explicitly provided for by law) are explored as a source of protection obligations and courtesy relationships within a purely relational paradigm. What emerges from a comparison between French and German law is a contrast between two different conceptions behind obligation — the first one being pluralistic in principle as opposed to the second one being unitary in principle. French law is typified by the «accessory», instrumental and remedial character of obligations of sécurité and a systematic link to the rules of tort law. Under German law, where ‘pure’ or ‘isolated’ obligations for protection are moving towards those emanated from ähnliche geschaftliche Kontakte, the question now is posed as to the division between leistungsbezogene Nebenpflich ten and nicht leistungsbezogene Nebenpflichten, with the ultimate purpose of identifying the type of enforceable remedy. Given that a dogmatic, taxonomic approach alone is impractical at this stage of the enquiry; the author suggests adopting a more practical and workable solution based on the choice of remedy — one which is compensatory or specific in form for contractual performance. In recognizing that these different solutions meet the historical demands and align with the systematic characteristics of each legal system, the author then underlines the phenomena of ‘equivalence’ and ‘symmetry’ behind the regimes of imputed liability in the areas of tort and contract law, in an effort to go beyond a division towards unification along the path that stretches those phenomena from fault to strict liability principles.