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THEORETICAL CONSIDERATIONS IN DEFINING GOOD FAITH Pîrvu (Troe) Marcela PhD student University of Timisoara Faculty of Law

The doctrine and the jurisprudence, in order to define the good faith, make use of such adjectives as: honest, faithful, loyal, correct, reasonable, responsible, prudent, of common sense, equitable; but only some of these adjectives are used. Sometimes, there are other adjectives than the above mentioned which are taken into consideration. The definition of good faith depends on using the two nouns, namely those of the exigencies of reasonable and equity. Other approach of the good faith as regards the doctrine and the jurisprudence consists of an enumeration of the obligations originated from the good faith, more exactly of the contractual obligations, collaboration, informing, assistance, discretion, loyal behavior and moderation. The most part of the doctrine holds that within the contract, the abuse of law and the violation of good faith, especially by its derogatory function, are synonymous. Good faith was defined in various ways1 in doctrine and jurisprudence, but the trial courts, without defining it, make use of the notion of good faith and in this situation, the lecturer has to discover the hidden motives. In order to define the good faith, there are used various criteria, the following being the most often encountered: 1) The doctrine and the jurisprudence, in order to define the good faith, make use of such adjectives as: honest, faithful, loyal, correct, reasonable, responsible, prudent, of common sense, equitable; but only some of these adjectives are used. Sometimes, there are other adjectives than the above mentioned which are taken into consideration. It is said that the listed adjectives do not any longer need further explanations, as they have an obvious significance and therefore, there are no definitions or comments for them. There is no preoccupation for the hidden relations which are suggested by the enumeration of the adjectives above mentioned and also by the possible
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Simone David-Constant, La bonne foi, Editions Du Jeune Barreau de Liege, 1990, page 32

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the equity and the reasonable are used as synonymous. page 35 Ibidem 4 Ibidem. The question which appeared was whether by defining good faith through the application area should be liable of clarifying the notion. but it is not the same for the jurist too. According to a part of doctrine and jurisprudence. assistance. collaboration. namely those of the exigencies of reasonable and equity. loyal behavior and moderation. the issue which concerns us is to know if equity. In common language. 2) When applying the good faith. informing.conflicts among them. good faith has to regulate the relations pre contractual and not those from the extra contractual responsibility3. actually represents a cheat. social life imposes a certain behavior. and “the clarity of the notions which it is made reference to. but not equitable. the doctrine and the jurisprudence have the tendency to utilize as synonymous the notions of reasonable. although there is not a unanimous opinion regarding this subject. the way they should be solved is not taken into consideration. but unreasonable.”5 The discussions regarding the content and the application of the notions of reasonable and equity have not reached an agreement so far. equity and justice. he should have used a single synonym. Nevertheless. because if it were. is not necessarily equitable or loyal”2. Thus. reasonable and unjust. 2 3 Ibidem. just and inequitable. discretion. page 36 5 Ibidem 82 . A behavior “can be: reasonable. 3) The definition of good faith depends on using the two nouns. the reasonable in all the different meanings may be considered material sources for the rules of law or elements which can influence the individual and concrete application of general and abstract legal rules. there are obligations which appear and represent the consequence of the exigencies resulted from social relations. “whatever is honest and reasonable. A person has to act prudently. Actually. we have to define first these notions. 4) Other approach of the good faith as regards the doctrine and the jurisprudence consists of an enumeration of the obligations originated from the good faith. more exactly of the contractual obligations. equitable. from the reasonable point of view. so that the parties should act according to good faith. There is a close connection between the notion of good faith and the general duty of prudence.”4 In order to clarify the difference between the notions of reasonable and equity.

If the legal concept of good faith and the abuse of law are identical. vague notion whose indeterminacy would be an inevitable feature. consider that the abuse of law and the good faith should be different. the controversy regarding the definition of good faith is not removed. but still. In Belgium. It is admitted that “all the criteria developed by the doctrine and jurisprudence which allow to be determined the abuse of law. resulting from this that “contrary to most of people’s opinion. and the subject of the criticism is the fact that it is trying to join a content to good faith which leaves the notion unexplained. the abuse of law and the violation of good faith. This approach of the good faith does not solve the problem. but in order that a means should be used. it is necessary that the two notions should be assigned content. the identification of the abuse of law as a result of violating the good faith is successfully accomplished. from various reasons. but some.” The definitions mentioned above have not received the agreement of the doctrine and the jurisprudence. rule which is not obeyed when it comes to good faith. At the same time. page 38 8 Ibidem 9 Ibidem. The good faith being described as a vague legal norm has no strictly defined content and its content is established depending on the circumstances of 6 7 Ibidem. a distinction would be inutile.”7 6) None of the previous attempts to define good faith have had full success. the Court of Cassation made a distinction between the execution of the conventions with good faith and their execution without abuse of law. making abstraction of the references to the notions of equity. are synonymous. especially by its derogatory function. Good faith represents a means to achieve the end “the aim being other legal order”8. 9 reasonable and justice which are not satisfying.In the absence of a definition of good faith. Good faith is defined as an “open. and the believers in good faith identified it and thus a definition was imposed. Not always. it must be clearly determined. page 37 Ibidem. are applicable to good faith”6. page 38 83 . any control of the judge’s decision which states that the good faith gives rise to a determined obligation is impossible. 5) The most part of the doctrine holds that within the contract. the essential character of good faith is accepted until it is called a fundamental norm of law.

11 For instance. means he is of good faith.Good faith is neighbor to equity. it has to be further applied. ignoring a flaw of the subjective law with good faith may refer to other person too. the good faith does not represent anything concrete. thus the person of good faith believes that the law is either of his side or someone else’s side. which. equity. obtained the thing. the good faith is the antithesis of dolus and violence. judge or author. or he is the true owner of the transmitted right. namely: A. which we illustrate hereinafter: . and when interpreting them opposes to “strict law”. Academy of Socialist Republic of Romania Publishing House. there have been issued several theories. the moment of obtaining. strongly believes that the person from whom he. 1981 11 Ibidem. being common law. as well as the wrong belief in the existence of an objective legal rule which in fact does not exist.fact and the existing judgments of value in a society. page 22 12 Ibidem. The tripartite theory – according to this theory. The wrong belief that there is an objective legal rule which in reality does not exist has the same meaning. . on the way the new legal rules are created. there is the belief that when selling. the seller is the owner of the sold object.Because of a flaw of the subjective law or an objective rule of law. Bucharest. but it has to be determined what kind of consequences resulted by its application. the holder. . the common law is “the strict law”. the concept of good faith has three essential aspects. In fact. and the good faith represents an exception of the rules of the common law.Good faith is based on the general idea of loyalty. is the true owner. To define good faith. more adjusted by the person who invokes it. therefore.”12 10 Dimitrie Gherasim. If the holder. when concluding the conventions. B. the same. The statement that good faith is neighbor to equity does not represent a special feature of good faith. as moral value. The theory of the strict regime – according to this theory. As notion. Gherasim illustrated in his reference work10. The person who believes is a creditor and receives a payment which does not belong to him or the person which owns something and has the intimate belief that this belongs to him is still of good faith. the good faith consists of the wronged belief of a person. The tripartite theory reduces to two forms of good faith: “the one which is formed on the idea of loyalty within the contractual relations and the one which appears as ignorance or error regarding a flaw of the subjective law. completes the good faith regarding how much the parties’ will go. D. page 28 84 . Good Faith in Civil Legal Relations. when fulfilling them is the antithesis of fraud.

The objective good faith is objectively perceived according to the usage established among honest people and is synonymous with loyalty. Theory of good faith as a notion with results in the field of responsibility and nullity of legal documents. the author of a legal act is causing direct injury to other person. The subjective good faith is opposed to lie and dissimulation. eliminate or restrain the responsibility. sincerity. Good faith has a very large content which covers all the legal relations. page 25 Ibidem. in case that. the objective good faith constitutes a rule which limits everyone’s right and creates obligations. but also how far this covers the irregularity of a legal act. good faith has a unitary character in spite of its complexity. page 25 15 Ibidem. if the subjective good faith consists of a purely intellectual state of ignorance or error. because of the flaw. . Thus.The objective good faith. Considered as incorrect faith. 13 14 Ibidem. The deficiency of the bipartite theory consists of the fact that the distinction between the objective and subjective good faith is not clear enough. It is called the passive good faith “because it appears with the person who will suffer a direct harm14”. the subjective good faith is based on apparent situations forming what in civil law was called “the theory of color of law” Other version of the bipartite theory considers that good faith has two forms of action. The active good faith appears as the absence of the mal intentioned intervention the moment that the injury is effectively assumed by other person. page 29 85 . Theory of good faith concept. for instance “touching other person’s property. totally ignoring and with good faith his right – a pardonable ignorance.”13 The passive good faith consists of ignoring the flaw of legal act. D. E. The authors of this theory hold that in reality. According to this theory. The bipartite theory – this theory reveals two features of good faith: . The criticism made to this theory consists of the fact that good faith cannot be analyzed only related to civil responsibility and to the nullity of legal documents15 because this concept cannot be restrained to one or more fields of the civil law.The subjective good faith. The objective good faith opposes to dolus and fraud and is necessary to concluding and executing the conventions. namely active and passive. or in a psychological state of a subject of law. and the distinction made between the active and passive good faith appears as lacking in practical significance.C. when defining good faith it has to be analyzed how far this can establish.

The definition given by Cicero illustrates that there is a logical conformity (meaning conformity between reasoning and the expressions which translate it) and an ideal conformity (meaning conformity between the psychological fact transposed in words and the proposed aim). and the good faith to miss that is why the ideal conformity is also necessary. Connected to the two conformities. Oprisan – Elements of Ethics in the Concept of Good Faith .. which was based on two Greek words. 12/1965 page 52 18 C.. good faith is based on the loyal and honest intention. M. The Romanian Civil Code “does not establish the principle of good faith as a general norm of law.I. Since Cicero. Anca. because it is possible to be conformity between words and expression. Theory of German legal literature regarding good faith. to recognize either the law itself or only 17 other results” Here is other definition issued: ”The good faith may be conceived as a psychological state of a subject of law considered individual. will be illustrated by that mood which relates to the intended results. starting from Latin term fides. who defined the good faith as sincerity in words and loyalty in commitments. as a general rule of the common law. page 50 86 . no. is article 1 of Decree no. one of them meaning fidelity and the other one trust. either when concluding the conventions (article 970 Civil Code) or validating the acquisition of a right. state which implies a certain activity of the person or other purely intellectual attitude of ignorance or error which can be ethically analyzed and on the basis of which. In order to characterize the good faith it is not enough only the logical conformity. regarding the natural and legal persons which provides that “the civil rights are accepted . but provides the necessity of the existence of good faith only in certain situations. according to law and rules of socialist cohabitation”.1/1970. 31/1954. the psychological facts are illustrated as the conscience of the duty which has to be fulfilled and the proposed aim. In our law. According to this theory.”16 The grounds of applying the common good faith. G. there have been several definitions for good faith.F. page 27 P. good faith was defined as “the wrong conviction of a person regarding the profundity of the law which is invoked or exerted and which is taken into consideration by the law.Eremia – Legal Effects of Good Faith in Civil Law – New Justice no. “Studies and Legal Researches”. to be able to be applied the legal effects”18 16 17 Ibidem. starting from a standard of law. materialized in the legal act.. over the time.. Theory of good faith as norm with general character in our law.

Oprisan – Elements of ethics in the concept of good faith. Anca. Bucharest.Eremia – Legal Effects of Good Faith in Civil Law – New Justice no. no. Academy of Socialist Republic of Romania Publishing House. order. b) fair intention. 12/1965 Simone David-Constant – La bonne foi . found at third parties of good faith which equals with a right.we meet one of them when concluding and performing legal documents. Editions Du jeune Barreau de Liege. 35 87 . The two forms of performance “represent in fact the functions of the same concept of good faith based on the noblest percepts of ethics” 20 BIBLIOGRAPHY: Dimitrie Gherasim – Good Faith in Civil Legal Relations. and consists of an honest. in the light of the theories presented earlier. liceity and refusal to cause the injury as a group of elements which belong to the field of law as a consequence of the psychological facts stipulated above. 1990 C. prudence.other form is given by the wrong and pardonable faith. “Studies and Legal Researches”. c) two forms of performance in legal relations .By illustrating the good faith. . we can talk about “the sides of the good faith concept within the science and practice of law”19 this way: a) loyalty. 1981 P. protected by law.1/1970 19 20 Dimitrie Gherasim. temperance as a group of psychological determined facts which have an ethical content. diligence. M.I. loyal and of total reciprocal trust activity. cited work page 34 Ibidem. commitments and especially contracts.