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The STUDIA UNIVERSITATIS BABEŞ-BOLYAI issue article summary
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Abstract: A Historical View of the Legal Approach to Good Faith and Bad Faith in Contracts. Good faith and bad faith in contracts are two intertwined concepts that have been with us at least since Roman times. Religious, social and ethical considerations have slowly dripped in the field of contracts and have gradually opened the formalistic contractual system of the ancient world to the realities of a more market-oriented and morally-conscious society. The fall of the Western Roman Empire brought to a halt the progress of the concept of good faith in contracts, the diminished contractual activity of the autarchic societies of the early Middle Ages having little use for such broad and abstract concepts as good faith and bad faith. The intelectual rebirth that was brought about by the rediscovery in the Western world of the Corpus Iuris Civilis of the emperor Justinian and the philosophical works of Plato and Aristotle gave a new direction to legal writing. The new systematic aproach to law that was specific to the Medieval Roman Law, the Christian preocupation with the avoidance of sin and the synthesis of Roman law with Greek philosophy and Christian concepts brought by Saint Thomas d’Aquino and the Spanish Late Scolastics meant that almost all contracts were considered good faith contracts and notions like fair price, distributive and commutative justice began to carry weight. The Northern Natural Law School of Hugo Grotius and Samuel Pufendorf and the French natural lawyers Jean Domat and Robert Pothier greatly influenced the vision of the first great Civil Code - the French Civil Code of 1804 - where good faith was considered a natural part of all contracts. The 19th century marked the insurgence of new concepts of freedom of contract and autonomy of the will that have temporarily sidelined the good faith/bad faith debate. The French literal reading of their newly adopted Code and the German school of Conceptual Jurisprudence were infertile ground for such broad concepts. Only in the late 19th century, with the emergence of the theory of the abuse of rights and the German Free Law movement, a new life began for the broad and moralistic concepts of good faith and bad faith. The Germans considered the limited good faith provisions of their 1896-adopted Civil Code as a "safety valve" that allowed for new caselaw that filled the gaps left by the legislative power and adapted the Code to the new times. The late 20th century marks the dominion of the concept of good faith in European contract law. Keywords: good faith, bad faith, contracts, Roman Law, ius commune |
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