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universul juridic magazin

Consideratii de drept comparat privind conceptele ingemanate de „buna-credinta” si „rea-credinta” in materie contractuala

The consideration in relation to the good faith and bad faith in the agreements in the new Civil Code entered into force as at 1 October 2011 shall belong to the European tendency to moralize the contract law. In order for the main regulations of the new Civil Code not to remain a dead letter, it is necessary to explain these concepts in the comparative law, both in the French civil law or in the Canadian law of Quebec, and in farther systems such as the German civil law or the Anglo-Saxon systems of Common Law, and also in academic creations as the UNIDROIT, D.C.F.R. principles or the Principles of the European Contract Law (P.E.C.L.). The definition of the concept of “bad faith” in the negotiation and performance of the contracts may start from the bivalent sense consecrated to the complementary concept of “good faith”, which is examined either from the intellectual point of view, as an erroneous faith or legal ignorance of a subjective law or material fact worthy to be protected, or, especially, as a requirement of behaviour in drafting and performing the legal deeds, permitting the morality to insinuate in the contract law. The legislative consecration of certain fluid concepts such as the good or the bad faith represents actually a true “delegation” of normative powers by the courts. The good and the bad faith are used by these in order to mitigate the rigour of the general rule, like certain concepts such as emergency, force majeure, relationship. The law needs such “safety valves” in order to avoid the excess of a rather detailed or technical regulation, for the purpose of keeping a just balance between the legal truth and the factual reality. The good and the bad faith in contracts have led to disputes regarding their conceptual independence, sometimes one of them being regarded as a simple contradictory phrase of the other, and the good faith is sometimes considered to be a simple lack of bad faith or, on the contrary, the autonomous concept was that of good faith and the bad faith was equal to the lack of good faith. The usefulness of the concept of “bad faith” has been also challenged, and the “proteiform” concepts of “good faith”,“wilful misrepresentation”, “intentional illicit deed”, “fraud” and “legal abuse” seem to be sufficient for expressing all the situations in which the objective law takes into account this kind of “dishonesty”. In this study, in the attempt to define the bad faith, we will inevitably refer to the good faith, but the latter has to be considered from the contract perspective, eliminating the good faith resulting from the erroneous knowledge from the discussion, which is more adequate in the context of the real rights.