128 Front.Law China(2006)1:121-152 is started by scholastic introductions about the theory.Some provisions of GPCL may be interpreted as partly on the effects of culpa in contrahendo (art.61).Arts.42 and 43 of CCL, with a lot of reference to PICC and PECL,are much perfect provisions on pre-contractual obligations and liabilities for culpa in contrahendo. A lot of discussions on the theory of culpa in contrahendo have been made in China.The main questions raised from the discussions include the scope of the theories'application,the scope of damages for culpa in contrahendo,etc.As to the legal basis for the liability,also there are several kinds of theories raised by German theories and cases,there is not so much divergence in China.In a generally accepted theory in China,a party should negotiate with due care in accordance with good faith and fair dealing,otherwise there will be a culpa in contrahendo.14 Key elements for the liabilities (when may it be applied?) As it has been generally accepted,if one party claims liabilities for culpa in contrahendo,the following requirements should be fulfilled.First,the parties contact each other with the aim of a contract.Second,one party breaches a pre-contractual obligation.Third,the party breaching a pre-contractual obligation has fault for the matter.Fourth,there are some losses occurred. And in Chinese law,there is no requirement that the other party must with a pair of clean hand. The party at fault shall compensate the other party for the loss caused by the fault.If both parties have faults,they shall bear their respective responsibilities(GPCL art.61 par.1;CCL art.58).It may be viewed as a kind of contributory negligence. The extend of its application According to whether the aimed contract validly formed or not,culpa in contrahendo may be divided into three types,namely type I the aimed contract not formed,type II the aimed contract void,and type III the aimed contract valid.The problem of type III was first raised and discussed in 1896 by a German Scholar named F.Leonhard.In 1910,Leonhard advocated his theory for the second time.A German court accepted Leonhard's theory in a case on 26 April 1912.From that time on,it has become a general viewpoint in Germany and Japan that culpa in contrahendo may be claimed even the aimed contract is valid.Unfortunately,the third type of culpa in contrahendo has not been accepted by the general civil law theory of China,also there are some different viewpoints on the question.So it is still a point in dispute in China. According to art.42 sent.2 of CCL,if one party conceals intentionally important facts related to the conclusion of the contract or providing false information,and thus causes loss to the other party,the party shall compensate for the loss.Though there is no word on whether the contract validly formed or not in art.42 sent.2,as it seems to me,it has left a space for such interpretation.So the third type of culpa in contrahendo may exist in Chinese law.And it may include situations where:(1)one party breaching its pre-contractual obligation to inform 13 Tze-chien Wang.Studies on civil law theories and cases,Vol 1.(1975),Taiwan. 4 See Jiafu Wang ed.,Law of obligation,(1991).Law Press China,p.339. is See Kenzo Miyamoto,Obligation ofcare for safety and the expansion of contractual liabilities.(1993).p.58.is started by scholastic introductions about the theory.13 Some provisions of GPCL may be interpreted as partly on the effects of culpa in contrahendo (art. 61). Arts. 42 and 43 of CCL, with a lot of reference to PICC and PECL, are much perfect provisions on pre-contractual obligations and liabilities for culpa in contrahendo. A lot of discussions on the theory of culpa in contrahendo have been made in China. The main questions raised from the discussions include the scope of the theories’ application, the scope of damages for culpa in contrahendo, etc. As to the legal basis for the liability, also there are several kinds of theories raised by German theories and cases, there is not so much divergence in China. In a generally accepted theory in China, a party should negotiate with due care in accordance with good faith and fair dealing, otherwise there will be a culpa in contrahendo. 14 Key elements for the liabilities (when may it be applied?) As it has been generally accepted, if one party claims liabilities for culpa in contrahendo, the following requirements should be fulfilled. First, the parties contact each other with the aim of a contract. Second, one party breaches a pre-contractual obligation. Third, the party breaching a pre-contractual obligation has fault for the matter. Fourth, there are some losses occurred. And in Chinese law, there is no requirement that the other party must with a pair of clean hand. The party at fault shall compensate the other party for the loss caused by the fault. If both parties have faults, they shall bear their respective responsibilities (GPCL art. 61 par. 1; CCL art. 58). It may be viewed as a kind of contributory negligence. The extend of its application According to whether the aimed contract validly formed or not, culpa in contrahendo may be divided into three types, namely type I the aimed contract not formed, type II the aimed contract void, and type III the aimed contract valid. The problem of type III was first raised and discussed in 1896 by a German Scholar named F. Leonhard. In 1910, Leonhard advocated his theory for the second time. A German court accepted Leonhard’s theory in a case on 26 April 1912. From that time on, it has become a general viewpoint in Germany and Japan that culpa in contrahendo may be claimed even the aimed contract is valid.15 Unfortunately, the third type of culpa in contrahendo has not been accepted by the general civil law theory of China, also there are some different viewpoints on the question. So it is still a point in dispute in China. According to art. 42 sent. 2 of CCL, if one party conceals intentionally important facts related to the conclusion of the contract or providing false information, and thus causes loss to the other party, the party shall compensate for the loss. Though there is no word on whether the contract validly formed or not in art. 42 sent. 2, as it seems to me, it has left a space for such interpretation. So the third type of culpa in contrahendo may exist in Chinese law. And it may include situations where: (1) one party breaching its pre-contractual obligation to inform 13 Tze-chien Wang, Studies on civil law theories and cases, Vol. 1, (1975), Taiwan. 14 See Jiafu Wang ed., Law of obligation, (1991), Law Press China, p.339. 15 See Kenzo Miyamoto, Obligation of care for safety and the expansion of contractual liabilities, (1993), p.58. 128 Front. Law China (2006) 1: 121–152