Good faith (law)

Good faith is a term of law and referred to the behavior of an honest and decent acting people.

Its historical origin, the principle of good faith in the bona fides in Roman law: A Roman citizen held much on his good fidelity; meant was so that, for example, its reliability and integrity in legal relations.

On the principle of good faith, often also referred to in today's legal system. The principle is pronounced differently in the States. Typical is a reference such as the German law of obligations, more precisely within a contractual obligation, the debtor is required by § 242 of the BGB, the power to effect such good faith with regard to the common usage. In Switzerland, however, this principle has constitutional status and is characterized by a broader effect.

Germany

Content

The principle of good faith is a general clause and therefore has set abstract. To clarify certain case groups have been formed. This includes, for example, the prohibition of abuse of rights and the prohibition of self-contradiction ( " venire contra factum proprium "). This case groups mainly serve to absorb facts that are not already covered by a special legal concretisation of the principle of good faith. Such legal concretions are found in German law in § § 243 ff BGB, as the obligation to provide goods of average kind and quality at a generic fault. Particularly clear is the relationship between the principle of good faith and § 241 paragraph 2 BGB. Before § 241 paragraph 2 BGB was added in 2002 to the Civil Code, the content of this provision has been derived solely from good faith ( see also pVV ).

Scope

In principle, the principle of good faith (such as a contractual relationship so ) is only within a special connection applicable, how can infer from the wording of § 242 BGB. Outside a special connection, the barriers for the actions of individuals are lower. So here is according to § 226 BGB only such action inadmissible, which serves to harm the other ( chicane ban). From § 826 BGB is also clear that intentionally immoral action is not allowed. This distinction is, however, often broken. In many cases, the principle of good faith of law and legal theory is also used outside of a special connection. An important example was formed up to their codification in the Civil Code, the figure of culpa in contrahendo. § 242 German Civil Code, according to which the debtor is bound to render its performance so, taking into account the prevailing practice require good faith as it is also referred to as the "King standard " of German contract law. The German Federal Court of Justice involved in the decision BGHZ 2, 184, and the case law with: " Higher than the wording of the law is its purpose and meaning of this to make it usable in a particular case the application of the law and then taking into account good faith dispute to. supply reasonable and cheap solution is the task of the judge. "

Nevertheless, the principle of good faith strictly by the above-mentioned prohibitions ( immoral behavior and harassment clause) must be separated. The terms used in the relevant provisions seem indeed to imply similar but they occupy different locations in the legal system and therefore have a different content.

Controversies exist as to whether the principle of good faith is also used in public law and in particular in the administrative proceedings and in litigation. Thus, the general need for legal protection is derived as a condition for the approval of a court case out of many good faith.

Liechtenstein

The principle of good faith has in Liechtenstein a supra-legal status as a general principle of good faith encompasses the entire action in the framework of the law and has, in addition to the explicit reference in Type 2 PGR, as a fundamental principle of law and the basis of the legal community and legal system also impact is extended to all areas of civil law and standards, in particular the civil Code, as conversely as the "good morals " clause in § 879 Abs 1 Austrian Civil Code to the entire civil law (§ 1 civil Code). From the mandatory observance of the " honest services" in the interpretation of the contract ( § 914 Civil Code), this principle of good faith is also seen.

For type 2, paragraph 1, or SR type 2 PGR is derived as:

  • Design and control limits of general terms and conditions (GTC ) (see also § 914 Civil Code);
  • Supplement incomplete contracts (BGE 115 II 488 );
  • Contractual education and information obligations ( BGE 116 II 519 ff, 119 ff II 456 );
  • Culpa in contrahendo (BGE 116 II 431 ff );
  • Principle of good faith in contracts (BGE 119 II 177 ff; 123 III 18 ff, 165 ff );
  • Trust liability (BGE 120 II 331 ff, 121 ff III 350, 123 III 220 ff, 124 ff III 297, 130 III 345 ff );
  • Adjustment of contracts to changed circumstances ( rebus sic Clausula stanti - BGE 120 II 155 ff, 129 III 618);
  • Bid gentler exercise of rights and excess ban (BGE 121 III 219 ff.)

Therefore, this general principle of law unfolds in Liechtenstein interlegistische binding. Good faith are in the public sector also an aspect of equality commandment ( arbitrary prohibition ) and as such a general ( in many application areas unwritten ) rule of law. The violation of this trust is an arbitrary behavior in general of the authority or authorities of the institutions in the public sector. The extent of the protection of legitimate expectations should also apply to the standard subjugated and the Authority, however, is not yet fully understood in Liechtenstein.

Switzerland

In the Swiss legal good faith plays a similar role in the legal formulations also differ in some cases. See for example Article 2, Paragraph 1 of the Swiss Civil Code.

In the Federal Constitution of the article defines five principles constitutional action, the action principle of good faith as a high legal protection for public agencies and private entities. This article is part of the first title General provisions and still faces the fundamental rights (Article 5 BV). According to the jurisprudence of the Swiss Federal Court, the Federal Constitutional derived from the principle of good faith includes the commandment honest, trustworthy and considerate behavior. The Swiss Federal Court has therefore Type 2 Civil Code referred because of the particular control function as a "star of application of the law " (BGE 83 II 348 f) and as a " barrier of all exercise of rights " (BGE 45 II 398).

This normalization is explicitly confirmed in the relationship between state bodies to all persons in Article 9 in connection with the " protection against arbitrary action " again. Article 9 BV

Austria

In Austria the principle of " good faith" already in the former Codex Theresianus is codified and is about to go via the German Civil Code ( BGB § 242 and § 157 BGB) back the way into Austrian law.

The term "good faith ", which in § 914Vorlage: corresponds exercise of bona fide transactions mentioned § / Maintenance / RIS Search Civil Code, dominated in general civil law; the right business traffic must not be misused to specify into another, but should play honestly (HS 2398/69 ).

CISG

In the CISG, Article 7 (1): In the interpretation of this Convention to its international character and to the need to consider to promote uniformity in its application and the observance of good faith in international trade.

Principles of European Contract Law

The concept of good faith is to be found for example in Article 2:101 of the acquis communautaire: In the pre-contractual dealings parties must act in good faith.

Abuse of process Unconscionability Federal Court of Justice of Germany Clausula rebus sic stantibus Community acquis Burgerlijk Wetboek
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