Risks in the Pre-Contractual Phase of Contract Formation

The pre-contractual phase of contracting represents a period of intensive information exchange and increasing investment, in which no contract has yet been concluded but the risks associated with negotiation are already real. This thesis aims to identify and systematically assess the legal and economic risks arising in this phase and the mechanisms available for managing them. The empirical part is guided by the research question of what risks arise in the individual stages of pre-contractual contracting and how potential contracting parties can effectively manage these risks. The theoretical part draws on a systematic literature review conducted according to Creswell’s methodology and links the legal analysis of pre-contractual liability, from the historical foundations of the culpa in contrahendo doctrine to its codification in Sections 1728 to 1730 of the Czech Civil Code, with economic concepts of information asymmetry, opportunism, sequential investment and the hold-up problem. The empirical part applies a law and economics approach through an original timeline model of the pre-contractual phase, which divides the negotiation process into four stages and identifies, in each, the dominant risks and the corresponding legal instruments for managing them. The analysis shows that the non-disclosure agreement, letter of intent, term sheet and offer constitute rational responses to the specific risks of each stage, while also highlighting their limited ability to address risks that arise in the course of long-term contractual relationships.