A Comparative Analysis of Silence as Legal Conduct in Pre‑Contractual Negotiations: A Novel Approach Based on Good Faith and Legitimate Reliance
Subject Areas : حقوق مدنیMohammadreza Marzban Moghadam 1 , Amin Najafian 2 , Fatemeh Shadhan 3
1 - Student of Master’s Degree in Private Law, Department of Law, Ahrar Institute of Higher Education, Rasht, Iran.
2 -
3 - Faculty Member in Public International Law, Department of Law, Faculty of Humanities, University of Baghdad, Baghdad, Iraq.
Keywords: Silence, Pre‑Contractual Negotiations, Good Faith, Legitimate Reliance, Pre‑Contractual Obligations, Pre‑Contractual Liability, Comparative Law, Contract Law,
Abstract :
Silence in pre‑contractual negotiations is one of the challenging concepts in contract law that may give rise to various legal consequences. Although in the traditional view silence is regarded as the absence of will, in today’s complex legal relationships it may sometimes be analyzed as an effective form of legal conduct. The aim of this research is to examine the position of silence in pre‑contractual negotiations with an emphasis on the principles of good faith and legitimate reliance, and to provide a comparative analysis of this concept in Iranian law and some other legal systems, particularly the laws of France and Germany.The research method in this study is doctrinal–comparative. Accordingly, the theoretical foundations of silence in the stage of pre‑contractual negotiations are first explained through the use of library sources, legal doctrine, and statutory texts. Subsequently, through a comparative approach, the legal systems of Iran, France, and Germany are examined and compared. Within this framework, the main focus is on the conceptual analysis of legal rules and the manner of their interpretation in different legal contexts.The findings of the research indicate that silence in pre‑contractual negotiations is not always without legal effect, and under certain circumstances—such as the existence of custom, a duty to disclose information, the creation of legitimate reliance, and the breach of good faith—it may give rise to pre‑contractual liability. The comparative analysis also demonstrates that in some legal systems silence at the pre‑contractual stage is regarded as a breach of pre‑contractual obligations and specific legal consequences are attributed to it.Finally, this research concludes that analyzing silence as a form of legal conduct can contribute to greater transparency, strengthen legal certainty, and reduce contractual disputes. It is therefore suggested that Iranian law, by drawing on comparative legal experiences, provide clearer criteria for evaluating the legal effects of silence in pre‑contractual negotiations.
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