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universul juridic magazin

Remarks on good- and ill-faith in the performance of common law agreements, in the new Civil Code of Romania and in comparative law

Initially, in the classical exegesis of Napoleon’s Civil Code and its derivates, good- and ill-faith exclusively concerned the debtor’s behavior, who was called upon, in the light of the pacta sunt servanda principle, to abide by the promise made and to accurately fulfill his commitments, good-faith contributing in the settlement of the dilemma as to whether an agreement was actually adequately and usefully fulfilled or whether the debtor behaved in ill-faith or, at least, lacking goodfaith. The modern vision expands the duty to behave in good-faith and avoid all ill-faith behaviors also for the creditor who, in bilateral agreements also is a debtor, by all means, and, in his capacity as creditor as such, can hold certain challenging right or simply actual opportunities of influencing the way in which the other party fulfills its obligations, being able to either hinder, or facilitate execution, to prevail of any commissoria lex or agreement waiver rights. Good- and ill-faith are perennial, but not immutable, concepts in contractual law. Their importance has varied along the centuries, from being regarded as essential agreement elements, to being regarded as marginal interpretation rules, without precise meaning. Their force and attractiveness derives from the very intrinsic flexibility characterizing them, which has allowed them to play, in various civilizations, the role of contractual law „safety nets”, through which the changing morality of society could become part of the parties’ covenant and of the auxiliary legal rights. The two concepts are not perfect antonyms, and circular definitions, such as „good-faith is behavior lacking ill-faith” or „ill-faith is the lack of good-faith” should be avoided, because they try to excessively simplify the binomial concept, which is complimentary. The two concepts have a common source, initially in the religion-related morality, and, subsequently, in the laic morality of society, their functions and sizes being closely related, but without, however, leading to confusion. In a civil law system relying on principles such as the Romanian civil system, both under the empire of the Civil Code of 1864, and under that of the new Civil Code enforced on October 1, 2011, the resort to such general concepts with a moral component is almost inevitable. The merit of this binomial concept, representing the subject of this paper, is that it has a seniority and a tradition of more than 2,000 years, during which its meanings have been explored in detail by hundreds of jurists and thinkers, on various continents, from all possible angles, from the religious to the purely economic one, going through the moral perspective and the desire for equity in law (ius est ars boni et aequi).