ABSTRACT
As a matter of principle, breaking-off negotiations or refusing a contract offer are lawful actions. For based on freedom of contract, each individual is free to contract, free to choose one’s counterpart and the content of the contract, and equally free not to contract. Only exceptionally can a party be held liable for breaking-off negotiations based on wrongful conduct. Hence, it appears worthwhile to look for alternative approaches to recover fruitlessly incurred costs in the context of negotiations that failed independently of any wrongful conduct. Undue payment offers precisely this possibility. Therefore, the present contribution offers an exploratory look at the chances of success of an action for undue payment to recover costs incurred in the context of failed contract negotiations in Belgium, France, the Netherlands, and Germany. The paper finds that in those cases where fruitlessly incurred costs technically qualify as a payment in the respective national legal system, the prospects for the party seeking to recover these costs are surprisingly positive.
Hick, Tom, Claiming Back Anticipatory Performance after Failed Negotiations – A Comparative Analysis of Alternatives to Precontractual Liability (September 17, 2025), Max Planck Private Law Research Paper No 25/20; Rabels Zeitschrift für ausländisches und internationales Privatrecht (RabelsZ), Online First, 2025 [10.1628/rabelsZ-2025-0049].
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