Good faith

Good faith ( bona fides Latin ) is a legal term from the law, in a legal appearance plays a role especially when Gutglaubensschutz as confidentiality protection.

The lack of good faith is called bad faith.

• 3.1 Definition
• 3.2 Legal anchoring
• 3.3 Use Cases

Rechtsterminologische demarcation

The German legal concept of good faith is the literal translation of the Latin term bona fides. The two terms are content, however, do not cover exactly the same, since the term of Roman law generally indicated honest and reliable action in legal transactions, including all involves what is commonly recognized in the German legal language with the concept of good faith. The German concept of good faith (lack of subjective awareness of injustice despite objective Untitled slope) is by contrast a conceptual narrowing.

Legal orders of Romanesque and several related Jurisdictions use the concept of bona fides or the corresponding national language expressions mostly in the original, the general sense of the Roman law. Thus, for example, speaks French, Spanish or Italian jurist of " good faith " ( bonne foi, buena fe or buona fede ) or " good faith " (or he used in international calling to the English expression "good faith" ), this can be the include good-faith belief in the strict sense, but is often more appropriate in German with good faith or reproduce faithful believer. As a " bad faith " a bad faith or abuse of legal rights is accordingly ever called in foreign languages ​​right in the rule.

Germany

General

The good faith constitutes an alternative solution for the case that there is a lack of authority of the settlors, but a business nonetheless available to be effective. However, the good faith only overcomes the defect in the authority, but not a unification or transfer deficiency. These basic facts must therefore be met when a Gutglaubensregelung to occur. A distinction must be:

• Good faith on the property: rule of § § 932 et seq according to § § 932, 933, 934, 936 BGB.
• Good faith in the power of disposal: ( allowed as an exception and only) § 135 para 2 ( statutory prohibition of sale ), § 136 ( behördliches prohibition of sale ), § 161, paragraph 3 BGB ( interim order ) or § 366 HGB ( right of disposal ). Not protected is a great belief in the power of representation of the settlors ( not required by law ). When submitting a power of attorney in original contractor ( § 172 BGB) is usually entitled to take the protection of good faith claim. According to § 56 HGB Gutglaubensvorschriften of the Civil Code are also applied in the trade purchase if the good faith of the purchaser to have the power of the transferor about the matter for the owner, is concerned.

Property law

Of particular legal significance of good faith acquisition of ownership of movable property in accordance with § 932 BGB. An acquirer may purchase from a seller who is not the owner, but the owner, ownership of the property. The possession of the seller at the thing here is the " warrant " of the property to which the purchaser may rely. Provided, however, that the purchaser is in good faith with respect to the ownership of the transferor. He may neither know nor due to gross negligence do not know that the seller is not the owner, so § 932 paragraph 2 BGB. This meets the law a definition of "good faith." Exceptionally, the bona fide acquisition is excluded, however, if the matter has been lost the right owner - been so about stolen - is determined § 935 BGB.

Securities

The protection of the bona fide acquisition of bearer securities ( excluded only in cases of gross negligence and intent of the acquirer ) is compared to tangible goods regulated by law far-reaching. It is in favor of bearer securities, a statutory presumption that the owner of a Bearer Security as its owner (§ 793 paragraph 1 sentence 1 BGB). In addition, can then be acquired in good faith bearer shares ( and money) even if they were stolen from the previous owner, lost or lost (§ 935 para 2 BGB). That is precisely excluded for other movable property ( § 935 para 1 BGB). According to § 365 section 2 HGB in conjunction with Article 16 paragraph 2 and Article 21 WG schg also a good faith acquisition of lost (in the sense of § 935 para 1 BGB ) Order papers is possible, provided that the respective owner related by a can identify the exhibitor cancels leading chain of endorsements. " Somehow got lost " - as formulated in the WG and schg - includes the voluntary and involuntary possession loss. Therefore, the good faith is not is linked to the possession of the document, but to a complete Indossamentenkette in to order, usually. It is protected on the property of the seller not only the good faith, but also the good faith of the right of disposal. A bona fide acquisition of Rektapapieren whose transmission follows exclusively the law of obligations and not property law rules is generally not possible because the law knows no guilt acquisition in good faith; possibly in the context of § 405 BGB a good faith acquisition is possible.

Owner - owner - relationship

Good faith also plays a role in owner - owner - relationship (§ § 987 ff BGB). This regulates the constellation that an owner has the cause of another ( the owner) in his possession, although he is not authorized to do. Here is differentiated between good and bad faith. Object of faith here is the fact that the owner is entitled to possession: White the owner of the fact that he unlawfully has the thing in his possession, he is less worthy of protection, shall be liable in accordance with strict ( § 990 BGB) and gets his turn, reimbursement of expenditure only under severe conditions ( § 996 German Civil Code); it lacks, however, the awareness of the illegality of his property, he is " in good faith " and is favored over the bad faith owners. Experienced by the bona fide owner of the illegality of his property, he loses from the date of becoming aware of the good faith and is from then on no longer in a special way worthy of protection ( § 990 paragraph 1 sentence 2 BGB).

Inheritance

The inheritance also creates a Gutglaubensschutz ( § 2366 BGB).

Commercial Law

In commercial transactions is sufficient because of the flexibility and speed of commerce and the experience of those merchants of good faith in the power of disposal ( § 366 HGB). Whether, however, also the good faith in the power of representation (ie, the action in the name ) is protected, is very controversial, but rather rejected.

Switzerland

Definition

Swiss law does not provide a legal definition of the term. He is probably best described as follows:

" Good faith is the absence of injustice consciousness despite a defect. "

Legal anchoring

The BV of the Swiss Confederation statuiert in Article 5, paragraph 3, that the state and the private sector to act in good faith. As a concrete applies in civil law the Gutglaubens - presumption. According to Article 3 of the Civil Code its existence is suspected, ie who wants to challenge the good faith of his opponent, must provide evidence of its bad faith ( and not vice versa). It must also be overturned to suspect with the evidence to the contrary, a rebuttal is not sufficient.

However, those who at the attention, as they may be required by the circumstances of him, could not be in good faith, is not entitled to rely on the good faith.

Applications

The following list is not exhaustive:

• Article 714, paragraph 2 of the Civil Code: bona fide acquisition of property
• Article 884, paragraph 2 of the Civil Code: bona fide lien acquisition
• Article 895 paragraph 3 CC: Right of retention
• Article 933 of the Civil Code: acquisition in good faith of entrusted property
• Article 935 of the Civil Code: bona fide acquisition of money and bearer securities