As it was shown by Fisher, Ury (1) and Shell(2) , during positional bargaining, where there is a contest of will through an endless sequence of positions, irrespective of its concrete nature, hard or soft, the negotiating parties usually lock into rigid positions, defending them since they want to ‘save face’, leaving no space for inventing advantageous additional options for mutual gain and thus expanding the ‘limited’, according to the adversarial orientation, resources. But even in many of the most competitive situations, the parties can still look for common ground, a solid basis of non-conflicting, in terms of shared or ancillary/compatible interests. Zero-sum games or win lose negotiations, in which what one player wins represents the loss of his opponents, cannot be always the optimum.
Furthermore, positional bargaining not only costs time and money, thus leading to inefficient agreements – provided that they are finally reached, which is quite doubtful – but also leads to ‘claiming value’ rather than ‘creating value’, hence, negatively defining the negotiators’ fundamental dilemma. The result is that the final contract refers only to that limited value that was initially obvious to the negotiating parties.
Consequently, the final allocation of resources – through the final conclusion of the agreement – is ineffective, in terms of economics of welfare, since not all said resources are recognized, assessed and then distributed. Additionally, such an allocation is neither Pareto optimal nor Pareto superior; there cannot be alleged that there is a reallocation so at least one party is better off and no one is worse off. Moreover, resources are not distributed in such a way that they cannot be reallocated without at least one party feeling worse off so the original distribution can be characterized as Pareto optimal (3). Under these circumstances, distributive issues in negotiation are appointed by the mal-perceived efficiency issues.
Beyond that, negotiation plays a critical economic role regarding the range of the ‘transaction costs’ and thus maximization of social welfare under the scope of Coase theorem (4); since legitimate positions are sufficiently specialized and transactions costs are minimized the economic and social units will voluntarily direct resources to their best utilities, regardless of their initial distribution. Thus, the costs referring to the collection of information and to the negotiating process are of equal importance with the costs due to the conclusion of a contract and to its enforcement.
In my opinion, the worst consequence is that the relationship between the parties and the substance, meaning the negotiating subject, are not separated with the result of not reaching ‘wise’ agreements because they often lack of durability. In any case, even if a contract is reached through – mutual or unilateral – compromise necessarily, the possibilities for future cooperation have been already damaged. That applies not only to long-term relations but almost to the majority of agreements concluded since their future dynamic – especially in business – cannot be anticipated. No one can guarantee with certainty that he/she will not have to negotiate again with the same negotiating party.
On the other hand, the underlying, legitimate interests of each side should be incorporated in agreements and should be served to mutual benefit to the extent possible, since participants must be considered, as problem solvers who side by side seek to maximize their own benefit, at least, the way they perceive it. In fact, according to the criterion of economic behavior that economic analysis of law advances, the parties, under the perspective of economic rationality, always form their behavior so as to maximize their total utility and thus their welfare while their marginal utility is inevitably and gradually minimized until their needs are met.
Thus, principled negotiation argues that the area of conflict, which is a natural behavioral result(5) , should be reduced in favor of reaching amicable and mutually beneficial agreements. The negotiating parties, sooner or later, should disclose their deeper concerns, needs and motives, that lie behind their initially expressed positions or raised issues and constitute their real, radical interests. Apart from that, the parties should negotiate on the merits and thus successfully enter the so-called ‘meta-game’, i.e. the process during which substantive issues in negotiation are discussed after they are initially addressed. Under these circumstances, the primary goal of every negotiating process, that is joint satisfaction of interests through superior negotiation, is achieved. This is the only case where escalation of commitment 6) can be shown since that goal equals to the highest legitimate expectation every negotiator may have.
Especially, under the scope of principled negotiation, the sequence of positions that characterizes positional bargaining must be followed by proper justification based on principles, objective standards and norms. The element of legitimacy, that is inserted, narrows bargaining zone to a host of possible solutions that treat the other side fairly, avoiding bottom lines, especially as dominant reference points. An efficient negotiator should yield only to reason, not to pressure. Only then, can positions represent motives and human needs that should play a critical role in negotiations, as they play in real life. The above thoughts that (should) act as leading principles in every negotiation, are extensively analyzed in principled negotiation that provides, mainly in business practice, the only path by which ‘wise’ agreements are reached in terms of satisfying the legitimate interests of both parties to the extent possible, fairly, taking into account community interests apart from private concerns, without endangering an ongoing relationship, if, of course, it is principally of importance ad hoc.
The crucial question that emerges when someone perceives the necessity of ‘problem-solving’ orientation and thus principled negotiation compared to the rigidity and deadlocks where positional bargaining usually leads to, is the following: What about the legal system, both external (meaning the organized rules in books, chapters, paragraphs) and internal (the common values that, like shared interests in a contract, internally justify their existence in an external system)? Does it enforce ‘claiming value’ or ‘creating value’? Does it take into account in any form or even advance ‘tit-for-tat’ strategy(7) and thus cooperation and reciprocity as basic elements in working, durable, contractual relationships based on trust or not? These were my first thoughts when I tried to examine the solutions that the G.C.C.(8) (almost sixty years ago) adopted in its relevant articles about negotiations and thus to perceive them as Fisher & Ury would.
The G.C.C. was the first of the European codes (the Italian Code of 1942 with the regulation of article 1337 was the second one) that recognized the responsibility of the negotiations in the form of expressed regulations(9) . Specifically, according to the letter of the law in section 197 of the G.C.C. : “In the course of negotiations for the conclusion of a contract the parties shall be reciprocally bound to adopt the conduct which is dictated by good faith (10) and business practices. Additionally, section 198 of the G.C.C. foresees that “A person, who in the course of negotiations for the conclusions of a contract has through his or her own fault caused damage to the other party, shall be liable for compensation even if the contract has not been concluded”.
Article 288 of the G.C.C. (11) imposes to the contracting parties (12) to fulfill their obligations that arise from a concluded contract, on the basis of the prevalent criterion of ‘good faith’. Hence, article 197 of the G.C.C., under the above context, extends this fundamental obligation to the pre-contract phase(13) , i.e. the phase of negotiations and is considered as ius cogens. In other words, from the regulation of articles 197-198 of the G.C.C., it follows that from the very beginning of negotiations comes into being a ‘quasi-contractual’ relationship of mutual confidence, which obligates the participating parties to adopt and maintain a responsible and honest behavior(14) . Under these terms, Greek law imposes the most indispensable ‘dovetailing’(15) ; the parties trade items (in concreto, behaviours) that are of low cost to them and high benefit to the other party involved. So, the relationship between them has the legal framework and direction to be further improved.
On the other hand, it should be pinpointed that since the ratio of the G.C.C. is to provide a specific framework in which private interests are respected and advanced, it insists on using objective criteria, independent of the will of the parties (16); ‘good faith’ and ‘business practices’. ‘Good faith’ (that includes precedent, efficiency, moral standards(17) , reciprocity as in ‘tit-for-tat’ strategy etc) and ‘business usages’ (in terms of professional standards, prior business practice) not only constitute fair standards in negotiations but also guarantee that the entire negotiation procedure (the ‘meta–game’ (18)) will be fair. Market value, scientific judgment and tradition are also used both in principled negotiation and law for the interpretation of the above criteria.
The violation of this obligation for a responsible and honest behavior triggers a primary responsibility for indemnification for the damage incurred by the other party, which is further called ‘responsibility arising from negotiations’. As far as it concerns the above responsibility (or ‘culpa in contrahendo’ according to Jhering), it is accepted (19) that it is a sui generis type of legal responsibility, that exists irrespective of the intention of the parties, at the same time as the other types of liability (e.g. torts – article 914 of the G.C.C.). Its generative reason is the special relation of trust that is (or must be) created between the parties in the stage of negotiations(20) .
In terms of covering the gap of the regulation in the G.C.C., although it is supported that the provisions about the contractual (articles 330 of the G.C.C.) or tortuous responsibility that best suit the particular case apply mutatis mutandis, more persuasive seems the opinion that the responsibility arising from negotiations is nearest to the contractual responsibility because between the parties a ‘general’ obligation or an obligation ‘in excessive meaning’ is formed (21).
The conditions for the application /enforcement of articles 197-198 of the G.C.C. are briefly the following(22) : the existence of a stage of negotiations, the opportunistic behaviour of one of the parties, their fault – liability(23) , the other party’s damage (and the existence of causal nexus between the liability and the damage(24) .
The negotiations begin when an interest for the conclusion of the contract is revealed in any kind of way, even oral, namely even before the submission of a proposal or the invitation for submission of a proposal(25) . Namely, any kind of ‘contractual connection’ (Geschäftlicher Kontakt(26)) , which includes the minimum possibility of concluding a contract, is enough e.g. the entrance of a customer in a shopping-centre. On the other hand, negotiations end either with their indicative intermission(27) or with the constitution of a valid contract or even with a valid preliminary agreement (article 166 of the G.C.C.) that is referred to as a ‘pactum de contrahendo’(28) .
In principled negotiation, three stages are distinguished: ‘analysis’, ‘planning’ and ‘discussion’. During the analysis stage, negotiators try to diagnose the situation, specifically, to gather information, organize it and think about it. Accordingly, during the planning stage, negotiators generate ideas for decision-making, while in the discussion stage the parties communicate back and forth, aiming toward agreement. Similarly, Shell refers to four stages of a typical negotiating process: ‘preparation’, ‘exchanging information’, ‘opening and concession making’, ‘bargaining’ and finally ‘closing / commitment’(29) . In other words, an efficient negotiator should prepare, probe, propose and then perform. It is recognized that the most critical trait of an effective negotiator is a willingness to engage in systematic planning and preparation. Otherwise, the opportunity costs of failing to prepare can be enormous. At the same time, it is generally argued that the negotiating parties should often extend the exchanging information stage as much as possible. This enables them not only to uncover their interests but also to open optimistically since their opening offers are now transformed to presentable cases based on information (30).
It is judged ad hoc if the particular behavior is in breach of good faith and business usages, according to the real incidents of the specific case(31) . However, the beginning of negotiations does not create an obligation for a final conclusion of the contract in consideration, but only an obligation for decent and honest behavior during the mutual effort of the parties to reach an agreement or, conversely, to ascertain their inability for such an agreement (32). It is evident that inefficient agreements are not supported even by the economic analysis of law since they were made at the expense of parties’ interests and thus subjective utility.
Damage is considered as to what is caused by the violation of trust of the injured party in relation to the drawing up of a contract. Mainly, the compensation conceals the ‘negative interest’ or ‘interest of trust’ (at least as terminus technicus) and so the injured party can demand anything that it would have expected to receive, if the behavior against business practices of the other party had not taken place (negative fact). The compensation covers any ‘positive’ damage, including lost profits and can, consequently, be higher than the ‘positive interest’ or the ‘interest of fulfillment’. In this sense, what principled negotiation calls BATNA (Best Alternative to a Negotiated Agreement), constitutes not only ‘the only true measure by which any proposed agreement should be judged’(33) but also one of the measures for claiming damages in case a negotiated agreement is not reached. Thus, the situational advantage that in negotiation terminology is known as ‘leverage’ is not entirely lost(34) .
In any case, it is accepted that the principles of good faith and morals of exchange in the stage of negotiations mainly impose two obligations; the obligation of ‘protection’ and the obligation of ‘disclosure’. The obligation of ‘protection’ has the object of taking all the necessary measures in order to protect the other negotiating party and especially all his/her ‘absolute’ legitimate goods (e.g. physical uprightness, health) as well as his/her property (in terms of constitutional ‘ownership’ that extends to claims), with the meaning of non-insulting his/her personal and related to property, status quo. Under this interpretation, it constitutes a ‘negative’ obligation (Nebenpflicht). Particularly, during the stage of negotiations, the obligation for ‘protection’, according to one opinion (35) , seems broader and more intense compared to the general obligation of ‘provision’ of article 914 of the G.C.C. Consequently to the violation of this obligation, the so-called ‘interest of integrity’ (Integritätsinteresse) or the ‘interest of preservation’ is offended (36).
Furthermore, the legal obligation of disclosure aims at the protection of the parties’ contractual freedom; it is noticed that as the negotiations continue, this liberty of the parties to conclude a contract gradually decreases. The parties seem to lock in a relationship like parties lock in rigid positions in positional bargaining. The obligation of disclosure means that negotiating parties must provide each other explanatory information, as well as details in relation to the context, the object-material and the legal consequences of the negotiated contract; mainly, that kind of data that can have a possible influence on the final contractual decision of each party (37). Hence, it is accepted as in principled negotiation that exchange of information increases the efficiency of agreements. The information has to be true, but this obligation is not so extensive so the parties have to reveal all the incidents that play a fundamental role in their decision-making. Besides, these facts/intentions can be protected by the regulations about personality(38) . In any case, a general obligation of disclosure in every point of the contract does not exist. Of course, this is in accordance with what the methodology of principled negotiation dictates; ‘good faith negotiation does not require total disclosure’ (39).
It should be underlined that the above obligation exists regardless of previous relevant demands or questions from the other party. On this point, the G.C.C. provides greater protection than the methodology of principled negotiation could expect from a legal system; it does not consider previous questions as a prerequisite for disclosure; it ignores their existence compared to the legal obligation.
On the other hand, the Greek legislator, despite the acknowledgement of possible information asymmetry that often constitutes a severe problem in inventing options for mutual gains and thus enlarging the ‘limited’, according to the adversarial orientation, contractual resources or opening optimistically, favors the protection of the personality of the negotiating parties. In the frame of this obligation, the parties have to give honest answers to probable questions. Under this scope, the Greek legal direction is close to encourage the parties to properly justify their choices and thus to negotiate on merits; they should bargain on principles. Consequently, the G.C.C. leads the parties to adopt an honest behavior that is the only medium for them to look behind positions and to disclose their underlying interests. Simultaneously, a legal environment is formed that what ‘sidestepping possible attacks during the negotiation process and deflecting them to the problem’ is known in negotiation terminology, is now possible (40) .
Additionally, according to G.C.C., each party has to avoid expressions that can be a motive or can constitute grounds for misunderstanding with the final result of cancellation of the contract(41) . As far as it concerns ‘deliberate deception’ it should find no place in negotiations under this legal framework; particularly, ‘deliberate deception’(42), ‘psychological warfare’ and ‘positional pressure tactics’ are dealt with under the scope of articles 140, 147 and 150 of G.C.C. Although the law provisions do not explicitly provide that participants are (and must be) viewed as problem-solvers that side by side try to find and multiply joint gains, it is absolutely expected as well as justified due to the different ratio they serve. However, I have the strong belief that principled negotiation can be extensively used as a basic criterion of interpretation and thus specification of content of the above articles. At the same time, arguments expressed (43) that there is no obligation to announce facts that a careful party can clarify on his or her own are not in contrast with what principled negotiation accepts.
In any case, it is of importance that in the scope of this obligation there can be included cases of non essential error (articles 140 of the G.C.C. ff), especially of error of fact, that do not justify the cancellation of an agreement otherwise (article 143 of the G.C.C.). As a result, the ‘innocent’ party is better protected against what in principled negotiation is described as ‘dirty tricks’.
According to I. Spiridakis (44), good faith and morals of exchange in articles 197-198 of the G.C.C. are further specified into a range of obligations; an obligation for serious and fast advancing of the whole negotiating process, an obligation for immediate notification of the judgment for interruption of the negotiations and non-drawing up of a contract, an obligation for information of the other negotiating party about the existence of circumspections about the drawing up of a contract. Under this sense, the parties should prevent the ‘escalation of commitment’ that threatens efficient allocation of resources. According to N. Papantoniou (45), the said statutes also create an obligation to prevent the other negotiating party from costs by not letting him/her believe that howsoever the contract will be concluded and respectively the obligation not to prevent to draw up another, better for the other party, contract, while it was certain that the contract for which the negotiations took place, would fail. In other words, the parties should be left pursuing their BATNA instead of locking in endless, time and cost consuming, negotiations.
In conclusion, there is no doubt that the Greek, historic legislator was not consciously aware of distinctions between ‘positional bargaining’ and ‘principled’ negotiations. That does not mean that he/she did not perceive them at all. The truth is that these principles, as it was shown, were subconsciously taken into account, to great extent, in terms of a different terminology (e.g. ‘negative interest’ instead of ‘BATNA’, at least when the later equals to another agreement). It should not be ignored that both these ‘systems’ were created to serve different needs and nevertheless confirm the same principles and values that must be served and advanced during negotiations.
(1) Fisher & Ury, Getting to Yes: Negotiating an Agreement without Giving In, 2nd edition, 1991, p. 4ff.
(2) G. Richard Shell, Bargaining for Advantage: Negotiation Strategies for Reasonable People, 1999.
(3) Of course, there is an argument concerning the appliance of Kaldor-Hicks and Marshall-Posner criteria.
(4) About R. H. Coase, honoured with the Nobel prize in 1991, see http:// www.nobel.se/economics/laureates/1991/coase-autobio.html.
(5) That does not mean that individuals behave out of pure self–interest as it was shown by game theorists in the ‘Ultimatum Game’ (Henrich Joseph, ‘Does Culture Matter in Economic Behaviour? Ultimatum Game Bargaining Among the Machiguenga of the Peruvian Amazon’, 2000, American Economic Review 90: 973; Roth Alvin, ‘Bargaining Experiments’ in Joth H. Kagel and Alvin E. Roth., eds., Handbook of Experimental Economics, p. 253, Princeton University Press; Werner Guth & Reinhard Tietz, ‘Ultimatum Bargaining Behavior: A Survey and Comparison of Experimental Results’, Journal of Economic Psychology, Vol. 11, p. 417 – 432).
(6) G. Richard Shell, id, p. 22ff. Also, Max Bazerman, Judgment in Managerial Decision – Making, New York: John Wiley & Sons, 4th edition, p. 66 – 78.
(7) ‘Tit-for-tat’ strategy was a strategy of cooperation based on reciprocity, introduced by Anatol Rapoport during the modern era of ‘Prisoner’s Dilemma Game’, that has been regarded as the ‘only evolutionary stable strategy in the world’ (William F. Allman, ‘Nice Guys Finish First’, Science 84, 1984, p. 25ff; David R. Kamerschen, Richard B. McKenzie & Clark Nardinelli (1989), Economics, 2d edition, p. 836ff). Of course, this characterization is excessive.
(8) Hereinafter, ‘G.C.C.’.
(9) See G. Maridakis, Draft of the Civil Code (General Principles), Athens, 1936, pages 216 ff, as well as the law-technical criticism by M. Karasis at NoB 26, page 592ff, mostly as for the necessity and the expediency of the article 198 in relation with the article 198 of the G.C.C.
(10) As it is known, it concerns the “objective” good faith or the integrity, honorableness and honesty that somebody has to observe in commercial transactions and generally in social co-existence. The “objective” good faith in contrast to the “subjective”, judges the exterior behavior of the person without regard to the motives and generally the subjective factors (About, Ap. Georgiadis, General Principles of Civil Law, 2nd edition, 1997, pages 22ff.; cf., Supreme Court 194/57 EEN 24, 709). Using the above terms provides law with an opportunity of minimizing the oversimplification of each case, that Menkel-Meadow mentioned, during the categorization process into torts, contracts etc.
(11) ‘A debtor shall be bound to perform the undertaking in accordance with the requirements of good faith taking into consideration business usages’.
(12) Despite the narrow formality of the commonly used term ‘debtor’ (See Supreme Court 609/1956 EEN 1957, 93ff).
(13) According to M. Stathopoulos (Contract Law, 3d Edition, 1998, pages 98ff), article 288 of the G.C.C. presupposes valid obligation as soon as the good faith alone does not form a reason productive of obligations. Such forming power can by developed by good faith only in terms of an obligation that existed and has been already carried out or in relation to an obligation that is likely to be undertaken, as in our case. The whole issue refers to pre-contractual or post-contractual obligations created by article 288 of the G.C.C.
(14) As A. Pouliadis has mentioned (Arm. 1983, 9), Stoll (Leistungsstörungen, page 10) recognized the independence and the non-effect of the ‘trust relation’ (Vertrauensverhältnis), on which the obligations of protection are primarily based, from the validity of the called ‘relation of consideration’ (Leistungsverhältnis), that is the main relation created within the contract bond from which the several obligations of consideration, master or accessory, arise. The release of this “relation of protection” (as it is called by Canaris) was the exact one that made possible the acceptance of the opinion that it is generated from the moment of the approach of the parties who meet each other with the aim of reaching a contract and so from that moment on, the corresponding obligations are generated. Hence, it is clear that the necessary distinction that Principled negotiation makes between the relationship from the substance in order to separate the people from the problem is also drawn in law (Fisher & Ury, id, p. 21). Accordingly, law relates different kind of obligations to relationship and substance, viewing ‘substance’ in terms of ‘consideration’ and not as the negotiating process itself, as is the case with principled negotiation. But this difference is trivial. It is underlined that the beginning of this evolution on the German law belongs to the foundation of the called “positive violations” of the contract by Stand (Die positiven Vertragsverletzungen) in the year 1902, who noticed the existence of other cases of contractual violations except the impossibility of consideration and the default of the debtor, which are regulated in the law. More particularly, he placed in the context of the contractual responsibility violations of already protected lawful goods (by Torts) of the other party when damages result because of defectiveness of the object of consideration or objective fulfilment of the consideration. In this way, the context of contractual responsibility was expanded at the expense of Torts and especially at the expense of the general tortuous obligations of safety (Verkehrssichrerungsplichten). Androulidaki-Dimitriadi (The obligations of exchanging faith, 1972) gives the above obligations of protection (Schutzpflichten) a more general meaning of obligations of “exchanging faith”, that find a legislative basis on articles 288, 197, 198 of G.C.C.
(15) Fisher & Ury, id, p. 76.
(16) Id, p. 84.
(17) Especially article 178 of the G.C.C. offers a direct legal basis.
(18) Fisher & Ury, id, p. 10.
(19) M. Karasis in Interpretation of G.C.C. Georgiadis – Stathopoulos, Volume I, 1978, pages 318ff.
(20) G.A Balis, General Principles of Civil Law, 8th Edition, 1961, page 234ff.
(21) According to M. D. Karasis (Companion of General Principles of the Civil Law – Law of Transaction, 1996, page 63 ff) it is about an obligation without main consideration and that’ s why fulfillment in terms of specific performance cannot be required. Furthermore, according to him, the tortious responsibility in this case does not have proportionate enforcement because the obligation of the observance of good faith is conceivable only in the context of an existing obligation. In favour of the proportional enforcement of the statutes regulating contractual responsibility, see P. Filios, General Principles of Civil Law, 2nd Volume, pages 210ff.
(22) Ap. Georgiadis, id, pages 376ff.
(23) Either of the injured party or the added (presumably: ‘third’) parties (article 922 of G.C.C. is applied proportionally) or his/her representatives. The degree of fault is considered proportionally to the type of the contract under formation (About, G. A Balis, id, page 237ff).
(24) According to the theory of the ‘protective ratio’ of the specific regulation in interest (see esp. M. Stathopoulos, id, page 175ff).
(25) See Supreme Court 1536/1966, NoB 14, 884. About, Ap. Georgiadis, id., page 377ff. According to M. Karasis (id, page 319), the stage of negotiations starts from the moment at which an approach is realized for investigation of the possibilities of conclusion of a contract in order to determine its conditions, warranties or intermediate terms, with the meaning of a ‘contractual contact’ more particular than the ‘social contact’, that is not considered enough for the enforcement of articles 197-198 of the G.C.C. (Supreme Court 362/60 NoB 8, 1202; Athens Court of Appeal 1515/71 NoB 20, 74).
(26)In contrast, Koumantos (Interpretation of the G.C.C., articles 197-198, no 43) demands not only the “contractual connection” but also a strong contractual interest.
(27) Supreme Court 638/1995 NoB 45, 598; Piraeus Court of Appeal 718/1996, Justice 39, 152; Athens Court of Appeal 11120/1986, Justice 29, 139.
(28) Supreme Court 261/1996, Justice 37, 150; Supreme Court 1505/1988, EEN 56, 740; Supreme Court 1303/1984 NoB 33,993; Supreme Court 756/1981 EEN 49, 491; Piraeus Court of Appeal 718/1996, Justice 39, 152, Athens Court of Appeal 11518/1986, Justice 29/916. If an invalid contract is constituted, there still exists a stage of negotiations and thus responsibility if it is not followed despite the fact that it is available by a confirmation (Αbout, I. Spiridakis, General Principles, 1985, page 674 ff; Contra, see Court of Appeal 2989/1978 Arm 1979, 25). At the stage of a formed contract it is not impossible for the court to apply regulations about pre-contractual responsibility as for example when a valid contract is drawn up or got its context because of an essential error which was caused due to the fault of the other party or it is determinable because of the above reason, so that compensation is available. Moreover, the above regulation can apply in the case when the contract is void because of illegality or immorality, lack of capacity to contract and the convey or misunderstanding that is caused by the other party or when the contract is valid and one of the parties knows it and hides it with the expectation that in the short term it will have a reason of notice of termination or retreat (article 389 of the G.C.C.).
(29) Id, p. 117ff.
(30) For more on ‘optimistic openings’, see G. Richard Shell, id., p. 160–164.
(31) Among others, it is judged (Supreme Court 628/95, NoB 45/598) that the party which culpably cancels the remaining formal signature, for which he had given to the other party clear affirmations that it should be taken as granted, is liable according to articles 197-198 of the G.C.C.
(32) Ap. Georgiadis, id., page 380ff.
(33) Fisher & Ury, id, p. 106.
(34) About the distinction between leverage and negotiating power, see G. Richard Shell, id., p. 89ff. Of course, it is more correct to accept that in article 198 of the G.C.C. a general right to compensation is defined and not a special form of compensation. So, the resettlement of ‘positive’ or ‘negative’ interest is not established but the ‘general interest’ or the ‘interest of trust’, that in this case can be the ‘negative’ or can concur with the ‘positive’ interest (then called ‘quasi positive difference’) in proportion to the result, in which the superior rule of ‘causal connection’ leads. Thus, the almost undefined and dynamic concept of ‘leverage’, in order to be specified in practical terms and then compensated, is related to the ‘causal connection’ criterion (M. Karasis in NoB 26, p. 592ff).
(35) Ap. Georgiadis, id, p. 376. Therefore, the responsibility is moving to a “social connection” (Sozialer Kontakt), earlier than the “contractual connection”.
(36) Nevertheless, according to A. Pouliadis (id), it is doubtful if the general interest about the integrity of persons and things is covered by the ‘protective ratio’ (Schutzzweck) of articles 197, 198 of the G.C.C. using their aim as the most leading criterion to their interpretation. The ‘general interest of integrity’ is primarily protected by general rules about tortuous responsibility. Thus, the simple time connection between the pre-contractual stage and injury of a person or damage of things that belong to him, seem not to be adequate so that the mentioned offenses can be characterized as ‘pre-contractual obligations’. The recognition of such obligations for protection, as pre-contractual obligations, seems to be justifiable only in cases of provocation of ‘further compensation’ because of damage inflicted on the property of a negotiating party and specifically due to the defectiveness of the performance or the defectiveness of the execution of that performance itself. In terms of principled negotiation, what matters is not the specific legal basis but the conclusion that these obligations of protection are granted.
(37) Athens Court of Appeal 11518/86 Justice 29, 916. According to that, the filing of an action by a third person for the recognition of the nullity of a testament, in which the seller supports his title to real estate settles a lawful defect for which obligation for enlightenment exists; Athens Court of Appeal 2403/62 NoB 12, 101; Athens Court of Appeal 1669/67 NoB 15, 833; Thessaloniki Court of Appeal 233/70 Arm 24, 604; Athens Court of Appeal 5382/88 Justice 31, 155; Thessaloniki Court of Appeal 192/79 Arm. 33, 847; Thessaloniki Court of Appeal 348/80 Arm. 34, 456.
(38) B. A. Vathrakokilis, id. According to article 57 of the G.C.C., ‘a person who has suffered an unlawful offense on his personality has the right to claim the cessation of such offense as also the non-recurrence thereof in the future’.
(39) Fisher & Ury, id, p. 140.
(40) Fisher & Ury, id, p. 112.
(41) Thessaloniki Court of Appeal 348/80 Arm. 34, 456.
(42)Fisher & Ury, id, p. 134ff.
(43) See N. Papantoniou; cf., Supreme Court 344/1982 NoB 30, 1465.
(44) Id., p. 678.
(45) General Principles of the Civil Law, 3d Edition, 1983, p. 343ff.