The ratio of will and expression of will in the issue of determining pre-contractual liability.

Davtyan Tsolak Agasovich Postgraduate Student, Department of Legal Support of Market Economy, RANEPA (IGSU) 119571, Russia, Moskva, g. Moscow, prospekt Vernadskogo, 82, of. 6 colakdavtjan.0@gmail.com

 In Article 434.1 of the Civil Code^[1], for the first time in domestic legislation, an attempt was made to determine the legal status of the negotiating parties.

This indicates the recognition of negotiations as an independent legal relationship, entering into which the parties express a tacit assumption of the existence of reciprocal obligations and rights^[2]. However, the classical understanding of this institution, which goes back to the Iering model, in which the institute of pre-contractual liability (PO) is built in close conjunction with the institute of invalidity of transactions, indicates this responsibility, first of all, as one of the possible consequences of invalidation of the transaction ^[3] [8. R. von Iering. 2013.]. On during the XX-th century, the scope of application of this design has significantly expanded and began to assume both cases of contracts subsequently invalidated and existing contracts. Based on this, after more than a hundred years of multilateral and voluminous research of this institute, to date, the classification of the consequences of culpa in contrahendo should be assumed in the following main dichotomy:1) liability for culpa arising from a legal relationship-negotiations that eventually led to the conclusion of an agreement, which the parties or third parties later try to challenge on one of the grounds of invalidity of transactions - and so that pre-contractual liability can be assumed only if there is guilt (culpa levis).

2) liability within the framework of the legal relationship (which took place between the subjects before the conclusion of the contract), which did not lead to the invalidity of the contract (it is in the latter group that I also consider the case of an inconclusive end of negotiations - when the contract was not concluded - it is assumed due to intentional fault, or due to gross negligence of one of the parties).

If the first point found its limited interpretation in the BGB corpus of 1896, and during the 20th century, through the efforts of judicial practice and pandect science, the nature of liability in invalid transactions was revealed (in the domestic Civil Code - Article 178), then the second point assumes, in turn, two independent incidents that should be considered separately.

 a) Negotiations that did not lead to the conclusion of a contract; in general, within the framework of the offensive, this case refers to a situation of failure of negotiations, where both intent and gross negligence can be the basis (in domestic legislation, it is embodied in Article 434.1 of the Civil Code);

b) The second case assumes that the imposed liability for losses caused by the pre-contractual actions of the counterparties, expressed also in the form of inaction, can coexist along with the validity of the contract itself (presumed in clause 7 of Article 434.1)

Thus, in the second case, the compensation of damages itself as a civil liability measure does not imply as its mandatory condition the recognition of the contract as invalid - the conclusion to which German civil law consistently came during the first half of the 20th century - just did not find its organic embodiment in domestic novels 2015 G. Throughout the 20th century, the recognition of contractual or near-contractual^[4] liability while maintaining the validity of the contract itself became an incentive to further recognize pre-contractual relations (aimed at concluding a contract) as an independent legal relationship, regardless of the fact of concluding a contract.

In domestic legislation, this trend eventually led to the novella 434.1, which establishes liability, including for sudden and unjustified termination of negotiations (paragraph 2, part 2 of Article 434.1). The negotiation process, thus, can be represented as an immanent discussion by the parties of both the offer and the acceptance, that is, before their direct formal expression unilaterally, and then a one-time coincidence, which in the theory of will (Willenserklarung) or the theory of legal transaction (Rechtsgeschaft) marks the formation of a new legal relationship - contract^[5] [9. Manigk A. 2008. p. 197]. Such a complex view shifts the emphasis from the temporal aspect to the substantive, because the moment when the offer was made, and when the acceptance becomes indistinguishable; for the same reason, it is fundamentally difficult to determine the subject composition (who is the offeror and who is the acceptor), despite the fact that the very fact of the acceptance and the offer is not in doubt. In case of unjustified interruption of negotiations, legal attention is paid to the moment when the contract should have been concluded - based on the transparency of the actions (will) of the parties aimed at concluding the contract - the effect, which, in this case, never came. Moreover, the absence of a contract will be interpreted primarily as a circumstance indicating the dishonesty of the behavior of the person responsible for the unexpected breakdown of negotiations, and not as the absence of an agreement (that is, the onus probandi of good faith behavior will be assigned to the defendant)^[6]. In this situation, the court eliminates the legal relationship itself (negotiations), makes restitution to the original position, as if there were no negotiations (compensation of negative interest) [8. R. von Iering. 2013. pp. 203-204]). In the context of the opposite case, in the situation of culpa in contrahendo, with a valid and valid contract, I assume that the agreement itself (established by the court taking into account the principles of proportionality and fairness) becomes a model for restoring the state that would have existed without the pre-contractual offense itself (what the doctrine understands by compensation of positive interest)^[7]. And it is assumed that the court, in this case, has the right to award the guilty party to the proper performance of the obligation (by analogy with Article 308.3). Such an understanding brings the civil-legal interest in the concept of an agreement to an independent meaning, thus expanding the formal boundaries of the contract itself (contract-transaction). Thus, the contract becomes part of a more general legal relationship, the starting point of which is the desired agreement (established by the court, taking into account all the circumstances). The required agreement as a model for restoring the legal relationship, taking into account the positive interest of the bona fide party, will be discussed in parts 1 and 2 of this study.It should also be noted that the construction of culpa in contrahendo was initially distinguished by the emphasis on the form of responsibility, which in pandect science was classically represented in the form of unintentional guilt, negligence (culpa levis), “typos”, etc. In the case of unjustified violation of the negotiation process - as a form of guilt, we can also talk about intent or gross negligence (in the domestic version, the norm of clause 2. clause 2 434.1): because it is difficult to imagine an unintentional interruption of negotiations at the final stage (clauses 1 and 2 of clause 2 of Article 434.1), unless there is a confluence of unfavorable, as well as fundamentally unforeseen circumstances by the parties, based on the occurrence of which the counterparties obviously would not enter in negotiations, the occurrence of force majeure circumstances can also be attributed here.

However, even in the case of intentional fault of the counterparty, the general principle of freedom of contract (Article 421) should be taken into account, which means that the contract, except in cases expressly specified in the law, cannot be concluded forcibly.

The corresponding analysis of the nature of culpa in contrahendo, considered in connection with the disclosure of the well-known classical dispute about the expression of will and will (the discrepancy of which is one of the grounds for invalidating the transaction), reveals in the fact of negotiations the independent nature of the agreement, which in many cases turns out to be expressed differently than it is fixed, objectified within the formalized moment from which the the contract begins to be considered valid. One of the main conclusions formulated by the German doctrine of the first half of the 20th century was to provide an opportunity for the plaintiff, along with maintaining the validity of the contract, to also claim damages (Leonhard's construction)[4. Gnitsevich K. V. 2009. P. 150.], which resulted from the guilty actions of the counterparty at the pre-contractual stage of the relationship. Such an attitude brought the PO closer to liability for contractual guilt: "... the same rules apply to a claim for compensation for damage caused by fault in negotiations that are provided for an ordinary claim for damages caused by improper performance of the contract"[4. Gnitsevich K. V. 2009. p. 150.]Thus, in contrast to the software as a consequence of the invalidation of the contract (the classical construction of Iering), as well as the case of damages considered above while maintaining the legal effect of the transaction, a completely autonomous (in relation to the legal fate of the contract) position is taken by the case, which, in particular, is indicated by the modern interpretation of ^[8] [7.

Zhuzhzhalov M. B. 2013. p. 268]: it assumes the consequence of a violation of the principle of good faith at the negotiation stage (when an unjustified exit at the negotiation stage can become the basis of liability in the amount of a negative contractual interest) - which, as a result, found its direct expression in the norm of Part 2 of Article 434.1. And in general, within the framework of this work, we will only point out that this case is less characteristic of the institution of culpa in contrahendo than, for example, some cases related to the nature of a significant error by one of the parties when concluding a transaction (Article 178 of the Civil Code).The last two cases (software while maintaining the validity of the contract, as well as when it is not concluded) represent a natural and historically formed development of the first moment in the legal tradition (software as a consequence of the recognition of the transaction invalid on the basis of a pre-contractual violation ^[9]), and determine the peculiar features of the institution of software, as if isolated from contractual liability, but also not joined the tort.

1.      

Will and expression of will.Within the framework of the continental legal tradition, a huge number of works have been devoted to the problems of the correlation of will and will, which makes it one of the central theoretical provisions on the basis of which the legal nature of the transaction is revealed^[10] [3.

Braginsky M. I. Vitryansky V. V. 2011 p. 169]. There are not so many works specifically devoted to this topic in the Russian literature: one can point to Rabinovich's monograph, in which the author managed to systematically generalize and classify different points of view on this relationship[11. Rabinovich N.V. 1960. P. 6]. Special attention should be paid to the monograph of Eugenzicht V. A. “Will and Expression of Will”[10. Eugenzicht V. A. 1983, p. 256]. In working out the issue of the grounds for the invalidity of transactions, depending on various combinations of the ratio of the will and the will of the counterparties, a great merit also belongs to Khalfina, who was able to identify three groups of cases of inconsistency between the will of the parties to their will [14. Khalfina R. O. 1954. pp. 222-223].The list of grounds for invalidity of transactions in domestic legislation does not directly take into account pre-contractual liability as a consequence, although in some of them one can see the features of culpa in contrahendo, in particular by the example of the following norms: para.

2 of part 1 of Article 167, establishes that the person who should have known about the invalidity of the transaction is not considered to have acted in good faith; paragraph 3 of part 1 of Article 171 establishes liability for damage compensation for a capable party if she knew or should have known about the incapacity of the other party - compensation for real damage is offered as liability; a similar norm is contained in paragraph 2 of Part 2 of Article 177 of the Civil Code. The article, which, in my opinion, contains the classical spectrum of forms of culpa in contrahendo - Article 178, in the paragraph. 2 of part 6 and further in paragraph 3 - establishes liability in the form of mild guilt (culpa levis), since in addition to the wording of the liability of the unscrupulous party who “knew or should have known ...”, responsibility for the error that arose as a result of circumstances depending on (the unscrupulous party) is introduced here.The interest in the correlation of will and will in considering the legal nature of the invalidity of transactions is direct, since the transaction recognized as invalid/invalid in part is determined by the court on the basis and taking into account the will of the parties ^[11] (formally expressed in the text of the contract or in the actions of the parties to perform the contract, as well as in actions aimed at conclusion of a contract / for the direct execution of the contract) and will, if the latter is sufficiently recognizable.

In all of the above cases, either the fact of the unscrupulous party's knowledge of the “fraud” of the will at the conclusion of the transaction is incriminated as guilt (as an example, Article 179 of the Civil Code); or the need for such knowledge, or the possibility of preventing this “fraud” - the very fact of error, which arose, as it is assumed, due to insufficient prudence (negligence) of the guilty the parties (as indicated by the last and most important paragraph of Part 6 of Article 178).The fact that the transaction is declared invalid on the above grounds refers both to the vice of the will of one party and to the vice of the will as a whole^[12].

The concept of the correlation of will and will resolves the opposition contradiction in such a way that no matter how the question is solved whether it is a defect of will or will, the party made a mistake in a written reservation (typo) or was significantly mistaken in the subject of the transaction - technically it is always about detecting inconsistency of the action (transaction) with the intention. It does not matter here to consider the case of late withdrawal of the offer as a special case of unreliability of the will (cited by Iering) [8. R. von Iering. 2013. p. 250.], since in the case under consideration - the will of the original offeror undergoes a change in time, which is expressed in the will (withdrawal) of a previously made will (offer). In addition, the case cited by Iering clearly speaks of the guilty party in the person of the offeror, who is obliged to compensate for losses (in the amount of negative interest)^[13] [1. Baehr O. S. 47] to the party who relied in good faith on the validity of the offer - which in most cases always involves compensation for losses in the form of real damage. Within the framework of this work, cases are also not considered when a discrepancy (of will and will) occurs on both sides - and then we have to talk about imaginary/fake transactions - since the intentional discrepancy of the will of the two parties to their mutual will (geeinigter Wille), which is thus covered up, can in no way indicate the presence of a pre-contractual violation one counterparty before another^[14] [3. Braginsky M. I. Vitryansky V. V. 2011. P. 170].

The substantial nature of this relationship assumes that the will exists before the transaction, the expression of will - at the moment of the transaction itself (contract) and the moment of detection of inconsistency of the expression of will to the will - occurs during the execution of the transaction or at the time of its conclusion (but not earlier, otherwise the transaction would not have to be challenged, since a bona fide party, so to speak “having understood the catch,” she simply would not have concluded it). The general consensus (within the framework of the general concept of the transactional expression of will) assumes the expression of will as an act of expression, expression, in order to communicate the inner will to another person ^[15] [9. Manigk A. 2008. pp. 198 - 199]. The domestic understanding proceeds from a broader interpretation of the expression of will and focuses on the moment of the presence of will in actions that are performed, even if not for the purpose of communicating to a specific person, but are expressions of will that indirectly, often beyond the power of the declarant, make the will (intention) of the person recognizable. However, this view rather confirms the general rule of a legal transaction, as in any case of a volitional act, and distinguishes it from the mechanistic or physiological representation of a volitional act as any action (for example, mechanical), which, when translated into legal language, cannot have any significant significance (for example, a mechanically raised hand during an auction). Based on these considerations, Ehrlich at one time took a radically opposite position on the issue of tacit expression of will - which he considered a fiction that does not exist in legal reality, since there is no purpose of any expression – a message [9. Manigk A. 2008. pp. 207 - 208]. The domestic legislator in the expression "recognizable will" or "sufficiently recognizable will" seems to have followed a more universal path, and expanding the concept of will narrowed by German pandect science, does not try to talk about the latter in the meaning of only a transactional will. It should be assumed that Sklovsky, in his analysis of the transaction, refers to the concept of action (volitional, meaningful action) as a synonym for the expression of will [13. Sklovsky. K. I. 2012. pp. 7-9]. As a generalizing approach of the domestic legislator, the position of Isaiah is of interest, which is notable for the fact that in Manigka's work it is given as a counterpoint to the classical pandect tradition, which, by expression of will, is always ready to understand a transactional expression of will, that is, an expression for the purpose of an indispensable message. The definition within which Isaiah proposes to understand the expression of will expands the meaning of one whole action (message of will) to the whole nature of a person's behavior - assuming a set of will-actions - "behaviors", which "according to the experience of turnover, when assessing all the circumstances, usually allows us to conclude that there is a certain will, without taking into account that, whether such a conclusion was made in each specific case or not" [9. Manigk A. 2008. p. 208]. It is the above-mentioned understanding that most concretely conveys the meaning invested by the domestic legislator in the concept of recognizable will - which is used when challenging a will (transaction), in a situation where the court can and should establish this "recognizability".

The Russian tradition throughout the 20th century remained closely linked to the representation of the will in general, which is why, despite full agreement with the arguments of the German tradition about the transactional will, the main discussions were still conducted about the nature of the correlation of will and will when recognizing transactions as invalid.Obviously, it should be said that the chosen language of description dictates the logic of conclusions: the language of the physical description of the will does not coincide with the psychological language, and the legal method of description is clearly distanced from the latter, for which the will, being a subjective element, is no more than an assumption, can be described and established (recognized will) only through the expression of will, regardless of whether we are talking about the formal objectification of the will in the contract or in the pre-contractual relations leading to the contract.

For example, if according to the claim of one party (who was deceived in good faith) there is a question of determining the circumstances indicating that the expression of will (formalized in the transaction) does not correspond to the will of the party - the court recognizes the will of the person in a variety of expressions of will that matter both before the transaction and after ^[16] [4. Gnitsevich K. V. S. 153]). And if there are none, then the court can proceed from the circumstances of the civil interest that a person in similar circumstances would have and take into account “transparency”, that is, the compliance of the actions of a conscientiously deluded party with the template of general interest established by the court^[17]. The theory, in accordance with which preference should be given to the expression of will, no longer stands up to criticism today, since the request for the fairness of civil turnover turned out to be much more significant than adherence to the formalism of law ^[18] [1. Baehr O. 1895. S. 18]. Therefore, we assume that the expression of will, interpreted more broadly, namely, not only as an action aimed at communicating the will of the transaction, but also as an action in which this message is read, ultimately allows a broader look at the contractual legal relationship. The latter, being thus constrained by the will of the parties within the framework of the concluded transaction, when challenging the transaction, begins to take into account the totality of actions both for the conclusion and execution of the contract as integral elements of a single legal relationship. The will of the parties becomes the prism and the only source of establishing the Common Will underlying the contractual legal relationship. The ratio of will and will is an abstract tool (because in reality, based on the phenomenological principle - we are able to perceive only the will of another person, but not his will in any way), which is able to reveal not only the absence or presence of an agreement in the basis of the transaction, but also establishes the degree of depravity (deviations) of will - which are determined accordingly like dolus, culpa lata, or culpa levis. To save the transaction, to save the contract, to save the agreement (Common Will) - it is possible if the party agrees to preserve the validity of the transaction on the conditions from which the party acting under the influence of delusion proceeded - as it is written in the norm of part 4 of Article 178. In this case, there is a convalidation of the guilty (or innocent) a party to that agreement, the Common Will (the sought agreement), which was invalid before. In order to understand how it is possible for the court to construct the desired agreement (common will), for example, in order to compensate for the positive interest of a bona fide party, it is necessary to consider the construction of the contract-agreement more carefully.2.      

Contract-transaction and contract-agreement.Negotiations leading to the conclusion of a contract relate to the content of a contractual legal relationship, constitute and, in fact, express the internal moment of the formation of an externally objectified agreement.

In most cases, negotiations are characterized by a contract-agreement model, and best of all contribute to the understanding of the principle “the source of the contract is the agreement". The transactional nature of any contract constitutes for the parties and third parties not only the formal moment from which the contract is considered concluded, under what conditions it can be recognized as valid, but also expresses the presumption of a simultaneous coincidence of the wills of the parties, which is expressed in the coincidence of (external) expressions of will.

Attempts to contrast the theory of unilateral obligation as a source of contract - the theory of consensus - have been rejected by continental legal science since the second half of the 20th century [2. Thomas A. J. McGinn. 2012 P. 41 - 42]. The modern norm, both in the domestic Civil Code and in the BGB, recognizes the agreement as the source of the contract^[19]. At the same time, the rules on transactions apply to the contract-agreement - and in general, it can be assumed that the contract itself, having already been reached by agreement, may, if there is a requirement of the law regarding the necessary compliance with the form, due to the ignorance of the party or parties, from a legal point of view, not take place as a contract-transaction (paragraph 3 of Article 163 GC).   The agreement, which is valid and does not cause any legal doubt for all parties, is a bilateral transaction, an agreement approved by the will of the two parties - which presupposes a coincidence of wills. “Cum in verbis nulla ambiguitas est, non debit admitti voluntatis quaestio”[12. p. 26] When words do not admit of any disagreement, the question of will should not be allowed to be raised. An action within the framework of the general perception of the legal will of a person is an expression of will, and where it does not cause the other party or third parties to claim unambiguity, the question of the correspondence of the will and the expression of will should not be raised. It is almost impossible to make a mistake in the entire text and meaning of the contract and claim that the will was mistaken. This is a presumption, an abstraction that is allowed, in the final and practical result, in order to ensure optimal unhindered civil law turnover.Thus, the legal interest in the will of one party or the agreement of wills between the parties is revealed only at the time of the claim of one party (several parties) or a third party regarding the legal validity of the will.

And the court, among other things, if the transaction as a whole is not void on the basis of paragraph 2 of Article 168, or Article 169, in order to determine the further legal fate of the contract, it is necessary to determine, if possible, the desired agreement is a coincidence of two wills, which for one reason or another did not find the expected (for one or two parties) expressions in the performance of the contract. The agreement sought here and further should be understood as a court-fined General Will underlying the contractual obligation.The fact that the concepts of a contract and an agreement do not completely coincide has been repeatedly stated in the Russian literature [3.

Braginsky M. I. Vitryansky V. V. 2011. p. 147], a common understanding leads us to the fact that any contract is an agreement, while not every agreement is represented by a contract. The contract as an agreement fixes the reciprocity of wills, but the contract may never take place, or it may be concluded with another agreement as its subject, which was not implied by one of the parties: technically, the agreement immediately disappears and the contract is recognized as untenable, even in Roman law this meant that the transaction does not produce an effect. Any contract is the product of an agreement, and with some degree of anticipation it can be noticed that the purpose of any agreement is a contract. Regarding the relationship between the substantive side of the contract, which is disclosed in the agreement and the formal compulsory element requiring a certain form for any contracts, Shershenevich spoke at the time: “Achieving this goal presupposes, first of all, the validity of the contract, i.e. the availability of all conditions under which the state power is ready to give legal security to the agreement”[16. Shershenevich G.F. 1915. p. 74]. The corresponding understanding, according to which not every agreement (the coincidence of wills regarding the emergence, modification or termination of a legal relationship) can be a contract (but de facto constitutes its content) correlates with the general doctrinal approach to the legal relationship as a real social relationship regulated by the norm of law (and after all, as Khalfina pointed out in detail at the time, not every public the relationship can be regulated by the rule of law ^[20] [15. Khalfina R.O. 1974. p. 7]).

The main features of the software in the case of an agreement that took place (a quasi-agreement), which eventually did not formalize into a contract (a case of unjustified failure of negotiations) determine the basis of a civil claim in the form of a deceived trust of a bona fide party. It has already been emphasized that this understanding is the historical result of understanding the case of a pre-contractual violation, in which the contract has the opportunity to remain valid. The difference lies in the actual composition - in the actual presence and absence of a contract-transaction in one and the other case, respectively. In case of unjustified withdrawal from negotiations (when, for example, agreement was reached on all points) - formally, that is, exclusively from a legal point of view, there is no agreement, and the court restores the counterparty's trust in the agreement that has not been reached (therefore, if there is a culpa levis on the part of the counterparty, it is logical to limit it by negative interest). The guilty party must suffer property deprivation due to the appearance of a Common Will, which it unreasonably created from a bona fide party. A common Will - an agreement of Wills^[21] [16. Shershenevich G.F. 1915. P. 73] with a de facto cash transaction - takes place regardless of the future fate of the contract. Therefore, the recognition of the independence of the agreement of Wills, allows you to determine the basis in the form of inconsistency of the will (from which the contract-transaction begins) the agreement of Wills (which in legal reality did not actually exist - that is why the party can invalidate the transaction - which is the direct law enforcement meaning of Article 178). However, if the transaction remains valid (of course, taking into account the provisions of Article 169 and Part 2 of Article 168), the desired agreement (an agreement that, from a legal point of view, was not^[22], but which was expected by the bona fide party) is reconstructed taking into account the will of the bona fide party with the appropriate degree of care and prudence shown by the latter. When reconstructing the agreement, the court will take into account the circumstances that indicate reasonable expectations that the parties could expect in similar conditions (with the simultaneous presence of guilt on the part of the counterparty). The court, guided by the grounds for the occurrence of the software and recognizing the transaction invalid, builds, as if in absentia, the desired agreement, into which, and counting on the terms of which, the bona fide party entered, eventually de facto deceived in their expectations. The court, through the prism of the composition of the negotiations, tries to recreate the agreement, as if clearing it of the mistakes made by the counterparty. As a result, it is assumed to preserve the strength of the transaction, the effect, in fact, of a vicious agreement, with the subsequent convalidation of the “defamed” part: the software comes in the form of the realization of a positive contractual interest. Thus, we see that the desired agreement, sought as opposed to the defamed one, is constructed taking into account the bona fide expectations of the two parties - if on one side good faith is vulnerable due to the presence of certain circumstances - then taking into account the fingered good faith, based on the interest that a bona fide person would have under similar circumstances of concluding the relevant transaction. With the artificial elimination of circumstances of mild guilt (culpa levis) from the guilty party, the desired agreement is reached based on the principle of reasonableness, autonomy of will and good faith of the parties. However, if we consider the case of non-conclusion of the contract, the question of consequences remains uncertain: does the desired agreement, designed in this way, allow the court to demand the conclusion of the contract from the guilty party (that is, by analogy with paragraph 1 of Article 308.3, the norm of which determines the basis for the performance of the obligation in kind)? It is believed that the provisions of article 434.1 cannot run counter to the basic principle of freedom of contract, however, such reconstruction on the basis of good faith of the General Will will allow to determine the amount of good faith expectation, and hence losses (albeit expressed within the framework of negative interest), as well as hypothetically determine the possibility of concluding a similar contract with a third party (paragraph 2 part 3 of Article 434.1) and recover the lost profit - in this case, the positive interest seems to be limited to this. The example of the purchase of household appliances cited by Gnitsevich is of interest to domestic legislation[5.

Gnitsevich K. V. 2009. 132-133]: when buying a washing machine, the buyer's untimely receipt of information served as the basis for additional installation costs. The question is the possibility of compensation for damages while maintaining the validity of the contract. To date, the legislation provides for this possibility when applying the not so articulated (for this situation) provision of Part 7 of Article 434.1, which determines that the rules of this article apply regardless of whether the parties have concluded an agreement based on the results of negotiations or not. In this case, the information about the additional costs of the buyer of household appliances for its installation, which is kept silent (unintentionally) by the seller, is updated in the agreement itself and the seller will be obliged to reimburse the overpaid as losses caused.The practical meaning of recognizing negotiations as an independent legal relationship is to provide additional guarantees for the concluded agreement (expression of will directly arising from the contract), which in certain cases the court can rely on to construct the desired agreement (general will).

The domestic principle of sufficient recognizability of the will as a whole operates with the composition of negotiations, which also, as we believe, includes a set of conclusive actions aimed at concluding a contract.3.      

Forms of liability and the problem of damages under culpa in contrahendo. An essential part of the construction of Iering, the construction of guilt for a pre-contractual violation, is, among other things, the assumption of a special form of responsibility - culpa levis.

In the case under consideration, the discrepancy between the expression of will and will - which is one of the conditions/grounds for the invalidity of transactions - the category of interest to us turns out to be a significant misconception. More specifically, as the doctrine suggests, culpa in contrahendo may indicate guilt for unintentional misrepresentation: in the case when the party was obliged to show sufficient prudence and good faith. For a situation of intentional guilt in the domestic Civil Code, you should refer to Article 179, which takes into account the consequences of deception. For the situation of culpa levis - as expected, the domestic legislator uses the expression of a misconception in a veiled manner, which “arose as a result of circumstances for which the other party is responsible” (paragraph 3, part 6 of Article 178). Thus, the range of possible coverage of the culpa levis category can spectrally provide for all cases of error in the subject matter or essential terms of the contract that arose before the conclusion of the contract, where gross negligence (which is equated to intent) is located at one end of the spectrum, and insufficient prudence, which eventually led to the error of a bona fide party, is located at the other end of the spectrum.For the doctrine of culpa in contrahendo in the form in which it was formed in the Iering model (that is, with the mandatory recognition of the transaction as invalid) - the norm of paragraph 3 of Part 6 of Article 178 with the requirement of general compensation for losses to a bona fide party - is central.

If there is a discrepancy between the will and the expression of will as a result of the intentional behavior of the counterparty - that is, when the discrepancy between the will and the will of the deceived party is detected by them during the transaction, and on the part of the other counterparty (deceiver) - is taken into account until the transaction itself (this explains the nature of the intent, it is always, as it were, until the action itself or simultaneously with a certain period of time is required, after which the will of the person discovers a discrepancy) - we can only talk about deception, the consequence of which is compensation for damages (Article 179), as well as in the corresponding norm of Article 178 (after all, the wording of damages implies, among other things, the concept of lost profits ^[23]). The main problem not worked out by the domestic Civil Code is the possibility of compensation for losses due to the unintentional fault of the counterparty and at the same time maintaining the validity of the transaction. Part 4 of Article 178 assumes a similar scenario only if the party itself, guilty/innocent of a material error of a bona fide party, agrees to preserve the validity of the transaction on the terms from which the party acting under the influence of the error proceeded.The norm of paragraph 7 of article 434.1, which provides for pre-contractual liability applied regardless of whether the contract was concluded or not, in general, could determine liability in the amount of losses while maintaining the validity of the contract.

However, in Paragraph 2, Part 3 of Article 434.1, recoverable losses are understood as “expenses incurred by the other party in connection with negotiating a contract, as well as in connection with the loss of the opportunity to conclude a contract with a third party” - that is, the costs of negotiations (which are supposed to have failed), and expenses for an “alternative” benefit, the achievement of which no longer provides for the case of concluding a contract with the original party. In general, the addition of this provision with the possibility of compensation for losses (expenses) related to the performance of the contract and arising on the basis of a pre-contractual violation of the counterparty - could, it seems to us, solve this problem, namely, by expanding the possibility of using the software in cases of valid transactions.Cases of non-conclusion of contracts related to accession agreements, public contracts, as a rule, cannot be covered by the consequences of pre-contractual liability - since the very nature of pre-contractual regulation in public contracts and accession contracts is directly expressed in the law, thereby there is no need to talk about the formation of a common will in the agreement of the parties, in which the principle of dispositivity of the negotiation process is strongly expressed.

The position of the author Komaritsky ^[24], who applies software to obligations arising from contracts of an organizational nature (a preliminary agreement, an option agreement or an option to conclude a contract), also seems to be incorrect - due to the simple fact of the existence of a contract (formally concluded and valid transaction), the violation of which introduces liability exclusively of a contractual nature. In this regard, it seems logical that the norms 434.1 assume, in the event of an unfair breakdown of negotiations, responsibility for the expectation of execution, but not the execution itself: the costs of negotiations (in fact, damage) and responsibility for lost profits (losses). Based on the literal interpretation of the text of Article 434.1, it is assumed that in case of unfair interruption of negotiations, we can talk about expenses (negative interest), while losses are recovered in case of intentional abuse by the party of the right of freedom to conclude a contract (paragraph 2, paragraph 3), and then only in cases where it is possible to prove the amount of lost profit - the immediate possibility of concluding a contract with a third party that was not implemented in a timely manner, and therefore the party acting in good faith suffered losses.It seems that in the case of a significant error, the legislator will allow a direct possibility of determining the software in the relevant provisions of Article 434.1, in which losses should be understood not only the costs of negotiations, or the loss of the possibility of concluding a transaction with a third party, but also losses associated with the proper execution of the transaction, especially in a situation where the interest itself the interest in the transaction turns out to be more significant than the losses caused to a bona fide counterparty at the negotiation stage, but which were actually realized (became apparent) only at the execution stage.

And the recognition of the transaction as invalid under Article 178 (or Article 179^[25]) for a bona fide party turns out to be an even more unprofitable enterprise.Thus, the independence of negotiations as a legal relationship will be conditioned not only by positive requirements for the negotiation process, which in general consists in the general principle of good faith (part 2 of Article 434.1), but will also be expressed by independent responsibility, which is collected if it is possible to preserve the validity of the contract itself.

Despite the fact that the scope of the interest of the pre-contractual legal relationship and the contractual one for the bona fide party will be the same in many cases - the grounds of responsibility for the violation by the guilty party of the bona fide interest (the sought common will) of the counterparty will be different.Also of interest is the ratio of the norms concerning assurances about the circumstances and the institution of software.

As a liability, these rules do provide for compensation for losses while maintaining the actual effect of the transaction; also, assurances about the circumstances (similar to pre-contractual agreements) have an independent fate, as if independent of the fate of the subsequent contract - which also brings the institutions in question closer. However, the norm of Article 431.2 refers to the positive obligation to inform reliable information, and, in fact, is reduced to the obligation to ensure the reliability of all information provided to the counterparty. Difficulties may arise in the absence of the assurances themselves, and when the need for the information itself is not formalized in the subject of the agreement (pre-contractual, for example). Of course, in this case we have to talk about misleading at the pre-contractual stage.The issues discussed in the last paragraph of this article indicate the inconclusive elaboration of contractual legislation, the partial and therefore insufficiently holistic incorporation of the Institute of software into the corpus of the Civil Code.

It would seem that the possibility of recovery of damages as a universal measure of civil liability in case of fault committed by one of the counterparties at the negotiation stage should be assumed initially, especially if the bona fide party wishes to keep the contract valid. However, limiting the scope of liability to losses in the form of expenses and (or) the consequences of the loss of a (proven) opportunity to conclude a contract with a third party just prevents the implementation of the principle of property proportionality of liability for breach of an obligation. It is assumed that the revision of the second paragraph of Part 3 of Article 434.1 regarding the universalization of the concept of damages^[26] - in the future will provide judicial practice with a wider opportunity to choose various tools for solving similar issues, based on a more holistic approach.  ^[1] Introduced by Federal Law No. 42-FZ of 08.03.2015 (as amended on 25.02.2022)//URL: http://www.consultant.ru/document/cons_doc_LAW_5142 /© (accessed: 04/27/2022).

^[2] Part 2 §311 BGB (in the modern edition of 2002) establishes as the beginning of the obligation (!) (Schuldverh?ltnis mit Pflichten), including the moment when the parties enter into negotiations.

^[3] In the article “Culpa In contrahendo, or compensation for damages in case of invalidity or non-conclusion of contracts” Iering is trying to find a common basis for compensating losses to a bona fide party in the event of the actual occurrence of a contract, which, however, does not legally exist (void/invalid transactions). ^[4] In order to avoid the principle of general tort alien to the German doctrine, a special principle of Integritaetsinteresse (interest in bodily integrity - see the so-called Linoleum case) was introduced by the legislation and judicial practice of Germany

[4. Gnitsevich K. V. 2009. pp. 60-61] This principle represented a more specific kind of diligence in contrahendo, and was a kind of guarantee that was assumed from the very beginning of the establishment of a legal relationship into which a potential buyer entered from the moment of visiting the seller's territory, (and) or contacting him [4. Gnitsevich K. V. 2009. pp. 60-61]^[5] The first doctrinal definition of the expression of will as the legal denominator of the concept of a legal transaction was given by Savigny, it took into account three main elements in the analysis: “the will itself, the expression of will and the agreement between the will and the expression of will” [9.

Manigk A. S. 197] ^[6] See paragraph 3 of paragraph 19 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of 24.03.2016 N 7 (ed. of 22.06.2021) "On the application by courts of certain provisions of the Civil Code of the Russian Federation on liability for breach of obligations"// SPS “

ConsultantPlus”.^[7] The definition of losses in the form of a positive interest that the counterparty could expect if his counterpart fulfilled his pre-contractual obligation in good faith (Part 7 of Article 434.1 specifies this case with the concept of lost profits).

^[8] Zhuzhzhalov notes that the origins of the modern understanding of the Institute of Software as responsibility for unjustified failure of negotiations, that is, the justification of the non-contractual responsibility of the institute culpa in contrahendo, are formulated for the first time in the works of the Italian civilist Gabriel Fagella.

^[9] Iering first of all assumed pre-contractual liability for culpa in contrahendo when the transaction was declared invalid due to the fault of the erring party, which initiated the invalidity of the contract (the corresponding norm is directly spelled out in paragraph 2 of Part 6 of Article 178 of the Civil Code): “the nullity of the contract, although it excludes a claim for its execution, does not exclude a claim for compensation for losses from culpae” [8.

Iering R. 2013. C.195]. Considering the fact that in the classical tradition, in such a situation, either a claim could be given on the basis of intent (actio de dolo), or it was necessary in rare cases, determined by the sources of Roman law, and listed by Iering, to give a contractual claim, which led to the fact that the party responded as if from a contract (quasi ex empto actionem continuat), although the offense (usually unintentional) took place before the conclusion of the transaction, and leveled the transaction itself from a legal point of view. [8. Iering R. 2013. C.195]. And as a result, it turned out that in the case of a negligent mistake, the usual application of the consequences of invalidation of the transaction took place, which means that the party who was mistaken in good faith in case of an unintentional mistake of the counterparty could not count on compensation for any damage. It was precisely in these cases of an unintentional error that caused the counterparty to be significantly misled (culpa levis) - Iering proposed to introduce the institution of compensation for negative interest. ^[10] In a situation where the will is recognizable, and accordingly its true meaning can be restored, priority is given to the will, and this is usually possible only when challenging a transaction/contract [3. Braginsky M. I. Vitryansky V. V. 2011. p. 169]. 

^[11] It should be clarified that not every action is an expression of will, since there are, for example, automatic actions - in which a legally significant will aimed at establishing, changing or terminating a legal relationship is not seen.

^[12] Although these concepts, as we will see in the future, are conditional and only the ratio of will and will has meaning, however, they are useful for analyzing the degree of error: whether the party made a typo (a defect of will) or was mistaken in the object of the transaction (a defect of will).

^[13] what Otto Baer vehemently disagreed with, who, being a proponent of the theory of will, in similar cases insisted on the conclusion of a contract and the compensation of a positive contractual interest: in the absence of a real will, Baer insisted on the fiction of Will (die Fiktion seines Willens), thus starting from the actual expression of will [1. Baehr O. 1895. S. 47].

^[14] In the work of Vitryansky and Braginsky, the opinion is given that imaginary transactions do not contain will at all, which from a substantive point of view seems wrong, because the parties have an explicit will to conceal their will (read intentions), however, from a legal point of view - we are dealing with an extremely formalized abstraction - and therefore the will is not the will taken into account in the will of the parties cannot have a legal effect, and it is on this basis that the will itself turns out to be null and void, because the legal will turns out to be null and void [3. Braginsky M. I. Vitryansky V. V. 2011. p. 170].

^[15] The classical representation of the transaction as an expression of will with the indispensable purpose of communication is summarized by Manigk on the basis of the opinions of Brinz, Regelsberger, Dernburg and Savigny.

[9. Manigk A. S. 2008. pp. 198-199]^[16] It was to this conclusion that the Imperial Court of Germany came at the time, leaving out the very formal nature of the transaction agreement, and recognizing as a single legal relationship the actions carried out both in the name of the execution of the concluded agreement and the actions aimed at achieving this agreement: “The negotiations leading to the conclusion of the contract and the conclusion of the contract itself form an inseparable whole.

This justifies the assumption that those obligations that are important for negotiations should be classified as contractual obligations ...” [4. Gnitsevich K. V. 2009. p. 153].^[17] In Roman law, this postulate was expressed in accordance with the expression of will to interest, thus, in place of the subjective and psychologically complicated nature of the human will, Roman legal consciousness put an objective requirement of rational (universally accepted by society) interest [6.

Dozhdev D. V. 2020. P. 151]. Eugensicht in his work also justifies the subjective category of will in the legal space through the prism of an objective representation of interest, an average need. See [10. Eugenzicht V. A. 1983. pp.30-32].^[18] In a dispute with Iering on the recognition of transactions made by the procurator (Prokurator) or the envoy (Bote), Baer considered it essential in all cases to preserve the validity of the transaction, and thus he eliminated, as it seemed to him, the unnecessary principle of compensation for Iering's negative interest.

See the analysis of the example with the coachman and the innkeeper: [1. Baehr O. 1895. S. 17].^[19] The Domestic Civil Code contains the definition of a contract as a transaction in Article 420 (paragraph 2), which also defines that the basic concept revealing the specific meaning of the contract from other legal facts entailing the establishment, modification or termination of legal relations is the concept of an agreement.

^[20] The following statement of the author is also of interest, which emphasizes the mutual conditionality of formal (compulsory) and material (substantive, in the meaning of the characteristics of a particular relationship) elements constituting a legal relationship: “The value of the concept of a legal relationship lies in particular in the fact that it denotes a concrete, real social relationship, clothed in a legal form and is the result of the implementation of the norm” [15. Khalfina R.O. 1974. p. 31].^[21] Shershenevich uses expressions of “consonant will” and “mutually understood will” as concepts defining the content of the contract.

We are not talking about one will that agrees to some conditions proposed by the other side, for example. Here we are talking about a qualitatively new substance - a common will. [16. Shershenevich G.F. 1915. p. 73]^[22] After all, an agreement, from a formal legal point of view, is an agreement reached on all essential conditions.

^[23] See paragraph 2. of the General Provisions on Liability and Damages.

Resolution of the Plenum of the Supreme Court of the Russian Federation of 03/24/2016 No. 7 (ed. of 06/22/2021)/SPS “ConsultantPlus”. ^[24] The third chapter of Komaritsky's dissertation is entirely devoted to responsibility in organizational relations aimed at concluding a contract.

This work does not assert the incorrectness of such an approach, however, it emphasizes the difference between pre-contractual liability for culpa in contrahendo, which applies to all types of bilateral transactions, from other liability having a specific, organizational (preliminary agreement), or in positive law provided for (Article 429.2 - option to conclude a contract). See: Komaritsky V. C. Legal regulation of pre-contractual liability under the legislation of the Russian Federation // Dissertation. for the Candidate of Law. n. m. 2016. pp. 116-172.^[25] paragraph.

2 of part 2 of Article 179 also understands deception as “deliberate omission of circumstances about which a person should have reported with the good faith that was required of him under the terms of the turnover.”^[26] By analogy with the general rule of paragraph 1 of § 249 BGB, which establishes the amount of damages based on the hypothetical state that would have been if the offense had not taken place.

This paragraph also provides for the possibility of reimbursement of expenses in a situation where the transaction was invalid or when the contract was never concluded (negative interest).