缔约过失责任的历史嬗变

在德国法上,缔约上过失制度是在侵权法与合同法之缝隙中生长出来并逐渐独立的制度,是学说、判例以及立法合力的结果。耶林从一生活中的例子出发,以罗马法为根据,勾画出缔约上过失制度独立之价值,后世之学说、判例,都是建立在耶林所发现缔约上过失制度价值的基础上的。可以说,耶林发现了法律问题,并准确地提出了解决方案,而司法实践又提供了大量的类型,最终经过学说一般化努力,缔约上过失制度才逐渐被法典化。缔约上过失制度发达史对我们的启示是,法典化的基础在于法律理论,而法律理论又有赖于学说与判例的发展,所以,在我们继受外国法时,应注意理论继受。

The Legal History of Culpa in Contrahendo

In German law, culpa in contrahendo(c.i.c) has evolved from the gap between tort law and contract law and become a separate system, which is the result of the co-operation of legal theories, case laws and statute laws. Starting from an example in real life and based on the Roman law, Jhering described the separate values of culpa in contrahendo, which became the basis of the subsequent research and cases. Jhering not only found the problem but also gave the right answer, at the same time the legal praxis also created and developed a lot of types of c. i. c, and in virtue of the academic efforts, c. i. c finally came into codification. What the history has told us is that the codification is based on legal theories, and in turn the legal theories also depend on the development of case laws. Therefore, when we introduce foreign laws, we must pay more attention to the reception of their legal theories and case laws.