Izvorni znanstveni članak
Should Croatian Law of Obligations Use the Concepts of Positive and Negative Contractual Interest?
Marko Baretić
; Pravni fakultet Sveučilišta u Zagrebu, Zagreb, Hrvatska
Sažetak
The paper analyses the positions of our legal literature concerning the concepts of negative and positive contractual interest (reliance interest and expectations interest). These concepts are frequently used in our legal literature in discussing the scope of damages, considering that they have been taken over from the German legal order. Positions taken in our legal literature, however, seem to diverge one from another to a substantial extent and often lack
appropriate reasoning. For this reason, the author first attempts to establish the content and functions of the concepts of negative and positive contractual interest in German law, from which these concepts are drawn. The analysis indicates that the positions expressed in our legal literature are largely a product of inadequate interpretation of German law. The analysis also shows that the system of determining the scope of damages in German law shows substantial conceptual differences to the one found in our legal system. Consequently, the interpretation of our law through the interpretation of the concepts of negative and positive interest may often lead to results which are in conflict with our legislation. In light of the above, the author concludes that the use of the concepts of negative and positive interest in the interpretation of our law is unjustified, and advocates the use of the concepts common in our tradition and based on our legislation - the concepts of actual
damage and loss of profit.
Ključne riječi
negative and positive contractual interest; negative contractual interest; positive contractual interest; scope of liability; reliance interest; expectations interest
Hrčak ID:
100051
URI
Datum izdavanja:
28.12.2012.
Posjeta: 3.552 *