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1
Ainslie, Jonathan. "Good Faith and Relational Contracts: A Scots-Roman Perspective." Edinburgh Law Review 26, no. 1 (January 2022): 29–50. http://dx.doi.org/10.3366/elr.2022.0737.
Повний текст джерелаАнотація:
One of the most striking differences between the Civilian jurisdictions and the English common law has been the reluctance of the latter to adopt a general principle of good faith in contract. Scots law, however, often seeks to exercise the functions of good faith but does not recognise it as a general principle. In recent years, English law has begun to identify good faith as an implied term in “relational contracts”, a concept with sociological and economic origins. This article applies that development to Scotland by exploring the relationship between good faith and the relational contract from a Scots-Roman perspective. It will be shown that the historical sources of Scots contract law, from the Roman reception to the Institutional Writers, are fully compatible with relational contracts. It goes on to consider how a Scots law approach to good faith in relational contracts might orientate itself to the English authorities.
2
MacQueen, Hector, and Shannon O'Byrne. "The Principle of Good Faith in Contractual Performance: A Scottish-Canadian Comparison." Edinburgh Law Review 23, no. 3 (September 2019): 301–31. http://dx.doi.org/10.3366/elr.2019.0571.
Повний текст джерелаАнотація:
In 2014 the Supreme Court of Canada in Bhasin v Hrynew formally but cautiously acknowledged good faith as a general organising principle of contractual performance at common law and that the principle largely manifests by way of implied terms and through the new duty of honesty. Rejecting English recalcitrance on the subject, the SCC concluded that recognising a good faith principle makes the common law less unsettled and piecemeal, more coherent and just. The article suggests that the limitations placed on the good faith principle by the SCC make its potential adoption in Scotland offer more opportunity than risk, especially in relation to the exercise of contractual discretions and contractual remedies.
3
Lusznat, Leonard. "Causal and Abstract Systems for the Transfer of Corporeal Movable Property – The (Un-)Importance of the Distinction in Light of Other Legal Mechanisms to Protect Transferees in Good Faith." European Property Law Journal 12, no. 2-3 (December 1, 2023): 280–300. http://dx.doi.org/10.1515/eplj-2023-0008.
Повний текст джерелаАнотація:
Abstract 280The article rejects the (possible) assumption that what is important instead of the distinction between causal and abstract systems for the transfer of corporeal movable property is (only) the protection of transferees in good faith. Its analysis takes five existing abstract jurisdictions (Germany, Estonia, Greece, Scotland and South Africa) into account. It identifies and examines three legal mechanisms (other than the principle of abstraction) to shield parties in good faith from the invalidity of preceding contractual agreements, that is, firstly, bona fide acquisition, secondly, relative effects of invalidity, and thirdly, (instant) acquisitive prescription. The article demonstrates that the (practical) relevance of adhering to the principle of causality or abstraction almost exclusively depends on the rules of other areas of law (delict or tort, unjustified enrichment, compulsory enforcement and insolvency law) as well as the three legal mechanisms protecting bona fide parties analysed – hence, the distinction between causal and abstract jurisdictions is indeed of limited significance. However, the protection an abstract legal system is able to offer goes in three respects beyond safeguarding transferees in good faith: firstly, for parties in bad faith, secondly, in two-party situations, and thirdly, for third-party holders of limited/subordinate real (security) rights, which is why the (possible) assumption raised above is rejected.281
4
Follan, Patrick J. "A Strange Genesis: Section 2 of the Trusts (Scotland) Act 1961." Edinburgh Law Review 24, no. 3 (September 2020): 323–41. http://dx.doi.org/10.3366/elr.2020.0648.
Повний текст джерелаАнотація:
In all jurisdictions which recognise the trust, a third party who receives trust property in breach of trust will be protected from a claim by the trust beneficiary only if in good faith. The sole exception is Scotland. In Scots law, a third party is secure even if they take in bad faith (that is, knowing that the property was transferred in breach of trust). This exceptional protection was created by section 2 of the Trusts (Scotland) Act 1961, a provision which, in its distinctiveness, is of significance to the Scottish law of trusts as well as of major comparative relevance. The purpose of the article is to investigate the origins of the section 2 protection. It begins by introducing the provision before the exceptional degree of protection it confers is placed in external and internal comparative context. With reference to preparatory materials, the article then moves to consider how the basis of section 2 lay in problems with the precise scope of the powers of a trustee in Scots law as well of a closely related institution, the judicial factor. It demonstrates that these problems led to the initiation of a law reform process which, principally by mistake and misunderstanding, resulted in an unsatisfactory solution in the form of section 2. The article then traces the later history of the provision from its inception to the present day, taking account the further attempts at reform which have had varying degrees of success. The article closes with some reflections on section 2 and the process of law reform which was its genesis.
5
Soyer, Baris. "Lies, Collateral Lies and Insurance Claims: The Changing Landscape in Insurance Law." Edinburgh Law Review 22, no. 2 (May 2018): 237–65. http://dx.doi.org/10.3366/elr.2018.0484.
Повний текст джерелаАнотація:
Determining the scope of the fraudulent claims rule in insurance law has posed a significant challenge for the courts, particularly in the last two decades. In the shadow of the doctrine of utmost good faith, the law in this area has developed in an uncompromising fashion introducing draconian remedies against an assured who submits a fraudulent claim. The Supreme Court's most recent intervention has provided much needed guidance on the state of the law. This article, taking into account the fact that in other areas of law more proportionate remedies have gradually been introduced, discusses the boundaries of the fraudulent claims rule in insurance law as it applies in England and Wales and Scotland. Considering that the insurers might be tempted to introduce fraudulent claims clauses into their contracts to expand the common law definition of insurance fraud at the claims stage, this article also evaluates the wording of such clauses often used in practice and concludes that they lack the desired clarity.
6
Siems, Mathias M. "No Risk, No Fun? Should Spouses be Advised before Committing to Guarantees? A Comparative Analysis." European Review of Private Law 10, Issue 4 (August 1, 2002): 509–28. http://dx.doi.org/10.54648/5096732.
Повний текст джерелаАнотація:
The following paper will deal with the question of whether a spouse who grants a security for the business debts of the other spouse can escape liability because he or she has not been properly advised by the creditor. After an introduction into this topic (1), I will outline the legal position in English, Scots and German law (2). As for English and Scots Law, I will focus on the decisions of the House of Lords in Barclays Bank plc. v. O'Brien and Smith v. Bank of Scotland, and, as for German law, I will deal with the reasoning of a duty to advise and the decisions of the Bundesgerichtshof (German Supreme Court). In the second part of this essay the similarities and differences of these legal systems will be compared and interpreted (3). In particular, I will consider the practical results as well as the existing and lacking legal concepts of each legal system. In the last part I will expound my own opinion (4). In this context, it will be discussed whether the principles of good faith and culpa in contrahendo are sound and whether a duty to advise keeps the balance between the interests of guarantors and creditors. As a result, it is submitted that the answer to these questions is in the affirmative.
7
McLaren, Anne. "The Quest for a King: Gender, Marriage, and Succession in Elizabethan England." Journal of British Studies 41, no. 3 (July 2002): 259–90. http://dx.doi.org/10.1086/341150.
Повний текст джерелаАнотація:
Some translation and joining of realms may turn to much good, and the wealth and tranquillity of many. As if we had a King for your Queen, or you [Scotland] a King for ours, it had been a goodly translation: to have united both realms in dominion, regiment and law, as they be in nature, language, and manners…. If you and we had joined together: it had made no great matter, on which side the King had been, so he had been religious…. It is religion and likeness of manners, that join men together … Where there is one faith, one baptism, and one Christ: there is narrower fraternity then, if they came out of one womb. (John Aylmer,An Harborowe for Faithful and Trew Subjectes, 1559)Me-thinketh it were to be wished of all wise men and her Majesty's good subjects, that the one of those two Queens of the isle of Britain were transformed into the shape of a man, to make so happy a marriage, as thereby there might be an unity of the whole isle. (Henry Killigrew to Robert Dudley, 31 December 1560)In 1559, John Aylmer responded to John Knox'sFirst Blast of the Trumpet against the Monstrous Regiment of Womenin order to win support for Elizabeth I's accession to the English throne. According to Aylmer, Knox identified as the “greatest inconvenience” of female rule the fact that the realm would be transferred to “strangers” when the queen married, ceding to her husband, as her superior, the power that had been invested in her.
8
Campbell Corcoran, Patrick. "Unicorn v HSBC: good faith returns to Scotland?" Edinburgh Law Review 22, no. 3 (September 2018): 380–86. http://dx.doi.org/10.3366/elr.2018.0505.
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9
Roper, Isabel. "Good Faith, Bad Faith." Alternative Law Journal 40, no. 1 (March 2015): 50–52. http://dx.doi.org/10.1177/1037969x1504000112.
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10
O´Connor, J. F. "Good Faith in International Law." Verfassung in Recht und Übersee 26, no. 1 (1993): 109–10. http://dx.doi.org/10.5771/0506-7286-1993-1-109.
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11
Novak, D. V. "Good Faith in Corporate Law." Civil Law Review 17, no. 2 (2017): 13–23. http://dx.doi.org/10.24031/1992-2043-2017-17-2-13-23.
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12
Stapleton, J. "Good Faith in Private Law." Current Legal Problems 52, no. 1 (January 1, 1999): 1–36. http://dx.doi.org/10.1093/clp/52.1.1.
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13
Ulyanov, Aleksey. "Good Faith in Civil Law." Журнал российского права 2, no. 6 (June 2, 2014): 133–40. http://dx.doi.org/10.12737/4461.
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14
Snyderman, Mark. "What's So Good about Good Faith? The Good Faith Performance Obligation in Commercial Lending." University of Chicago Law Review 55, no. 4 (1988): 1335. http://dx.doi.org/10.2307/1599790.
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15
Pfeiffer, Thomas. "Good Faith." ERA Forum 7, no. 1 (January 2006): 67–75. http://dx.doi.org/10.1007/s12027-006-0055-3.
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16
Tsuruda, Sabine. "Good faith in employment." Theoretical Inquiries in Law 24, no. 1 (January 1, 2023): 206–28. http://dx.doi.org/10.1515/til-2023-0011.
Повний текст джерелаАнотація:
Abstract This Article argues that the duty of good faith in contractual performance offers powerful but neglected resources to empower workers to pursue their legitimate interests and resist mistreatment by employers. The duty of good faith creates a joint authority structure within contractual relationships, vesting co-contractors with equal and joint authority over the meaning, purposes, and, hence, the requirements of their contract. Implementing such an authority structure requires ensuring that the parties to a contract have the communicative space and epistemic resources they need to uncover and develop a common understanding of their contract. In the context of employment, such an authority structure would be transformative. It would require legal recognition of a variety of employee speech rights and protection from termination for reasonable and good faith refusals to perform work, and would offer a legal basis to challenge the scope and enforceability of at-will employment clauses. The duty of good faith could thus supply a common law foundation for rights and obligations commonly associated with labor law.
17
Ghachava, Mariam. "Good faith in civil law and its subsumption in criminal law." MODERN ISSUES OF MEDICINE AND MANAGEMENT 24, no. 2 (December 1, 2022): 1–6. http://dx.doi.org/10.56580/geomedi17.
Повний текст джерелаАнотація:
Thus, in the presented scientific article, we have tried to analyze the principle of good faith, on the example of some norms of both civil and criminal law. The method of comparative analysis helped us to suppress good faith from civil law to criminal law with norms such as: voluntary surrender of a crime, sincere and affective repentance. Good faith as a social-psychological and moral phenomenon is often criticized if its doctrinal explanation is based on the etymology of good faith. It is based on its basic notion of conscience, which is directly related to the material world. The legislature does not provide a definition of good faith in any article of the Civil Code, which in our opinion is also a legislative gap. Furthermore the paper discusses some of the legislative recommendations and innovative approaches by the author to the definition of good faith in the norm of voluntary surrender of a crime.
18
Iftime, Emanuela. "GOOD FAITH IN DOMESTIC SALES LAW." Agora International Journal of Juridical Sciences 8, no. 4 (November 23, 2014): 68–80. http://dx.doi.org/10.15837/aijjs.v8i4.1603.
Повний текст джерелаАнотація:
Good faith is a true principle widely established by the positive law. But how does this principle operate? How is the connection made between an undetermined legal standard, such as good faith, and the practical operations by which contractual obligations are fulfilled? The essay will answer to these questions by providing a comprehensive analysis of how the concept of good faith operates in a variety of national law systems.
19
De Baere, Geert, and Timothy Roes. "EU LOYALTY AS GOOD FAITH." International and Comparative Law Quarterly 64, no. 4 (October 2015): 829–74. http://dx.doi.org/10.1017/s0020589315000421.
Повний текст джерелаАнотація:
AbstractComparing the EU law principle of loyalty with international law good faith and the duty of federal good faith in German constitutional law (Bundestreue), this article contributes to the discussion on the nature of the EU legal order and its relationship to international law more generally by finding that EU loyalty is in essence a specific incarnation of the international law principle that treaties are to be interpreted in good faith. At the same time, it challenges the assumption that international law good faith differs fundamentally from federal good faith. To this end, the article points at historical links between both, and posits that good faith is in essence a principle of constructive interpretation, the strictures of which increase with the level of integration of the legal order in which it is applied.
20
HILLER, JANINE S. "GOOD FAITH LENDING." American Business Law Journal 26, no. 4 (December 1988): 783–804. http://dx.doi.org/10.1111/j.1744-1714.1988.tb01511.x.
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21
Kusmiati, N. Ike. "Legal Standing of Pre-Contractual Good Faith Principle as a Law Reformation of Indonesian Contract Law." International Journal of Science and Society 2, no. 1 (March 15, 2020): 73–85. http://dx.doi.org/10.54783/ijsoc.v2i1.61.
Повний текст джерелаАнотація:
Good faith plays an important role in a contract since it holds a dominant position either during pre-contractual phase or when a contract is executed. However, pre-contractual good faith in Indonesian Civil Code is not recognized as such there is no legal assurance. In fact in pre-contractual stage, the parties already put some investment based on trust and hope, however, they faced dead end and they did not reach an agreement. This was tinted with the fading of wall between two major legal systems: Common Law System and Civil Law System as a result of dynamic in business relation involving countries bringing some developments in contract law. The extension in the substance of good faith in Article 1338 verse (3) of the Civil Code should not be implemented so grammartically that good faith does not only appear during the execution of the contract but it should also be interpreted during the whole process of the contract that good faith should lay the foundation of the parties relation both in pre-contractual phase and during the contract such that the good faith in Article 1338 verse (3) of Civil Code functions dynamically. In UPICC, the provision of good faith is stipulated in Article 1, 7 stressing on the importance of good faith and fair dealing. This stressing underlays the process of contract agreement. Good faith should be interpreted and formulated during the whole process of contract. Under the traditional doctrine of Common law, court cannot punish the defendant because Common Law system does not recognize the good faith principle in negotiation process. Nevertheless, modern law contract waives the legal assurance to reach a substantial justice that good faith is not only applied in a contractual relation but also in a pre-contractual. Meaning, good faith does not only bind upon matters explicitly stated in the agreement, but also upon ones that traditionally are required by appropriateness, tradition, or the law as stipulated in Article 1339 of the Civil Code and Article 6:248 of Netherlands NBW. The good faith and fair dealing principles should be the underpinning of contract law. Each party should uphold the principles of good faith and fair dealing in the whole process of the contract starting from negotiation, contract arrangement, the execution of the contract as far as the termination of the contract particularly in the reformation of Indonesian future contract law
22
Tassoni, Alberto. "Good Faith in English Contract Law: Should the Law Retreat?" Business Law Review 44, Issue 5 (October 1, 2023): 160–71. http://dx.doi.org/10.54648/bula2023020.
Повний текст джерелаАнотація:
English courts have traditionally adopted a highly restrictive approach when implying good faith terms in commercial contracts. However, a series of recent judgments has seemed to depart from this tradition. In this paper, first, I reinforce and expand upon arguments that doctrinal support for the implication of such terms is lacking. Second, I clarify why the semantic behaviour of ‘good faith’, contrary to what is typically claimed, does not amount to innocent context-sensitivity. I present a new account of what is distinctively objectionable about implying good-faith terms and also demonstrate its explanatory power. These results also inform the moral architecture of English contract law, suggesting that it should be more minimalist than it might have been thought. Good faith, Contract law, implication of terms, context-sensitivity, legal certainty.
23
Kharitonov, Igor Valerevich. "Subjective good faith in tax law." Налоги и налогообложение, no. 2 (February 2020): 1–8. http://dx.doi.org/10.7256/2454-065x.2020.2.32094.
Повний текст джерелаАнотація:
The subject of this research is manifestation in tax law of the category of “good faith” in a subjective sense. The author reveals what it exactly means within legal science, as well as examines the aspects that must be considered when applicable to resolution of tax disputes. The article also addresses the key criteria, according to which private and public parties of tax relations can be deemed not in good faith in the subjective sense of this category. The main conclusions of the conducted study consist in the fact that good faith in the subjective sense within law enforcement represents an efficient, but simultaneously poorly researched means of counteracting abuse that emerges in the sphere of tax law. It should be applied not only towards private parties of tax legal relations, but also towards the tax administration. At the same time, this category is practically not researched within the science of tax law, which substantially impacts the efficiency and justification of its implementation by the courts in resolution of tax disputes.
24
COLLINS, HUGH. "Good Faith in European Contract Law." Oxford Journal of Legal Studies 14, no. 2 (1994): 229–54. http://dx.doi.org/10.1093/ojls/14.2.229.
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25
Colombo, Sylviane. "Good Faith: The Law and Morality." Denning Law Journal 8, no. 1 (November 14, 2012): 23–59. http://dx.doi.org/10.5750/dlj.v8i1.233.
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26
Auer, Marietta. "Good Faith: A Semiotic Approach." European Review of Private Law 10, Issue 2 (April 1, 2002): 279–301. http://dx.doi.org/10.54648/408367.
Повний текст джерелаАнотація:
The meaning, function and desirable scope of good faith in contractual performance is one of the most pervasive problems of European as well as American contract law. Yet, the discussion seems to be locked into a set of inescapable dilemmas which frequently reappear as a typical, but unsatisfactory part of academic contributions and judicial opinions; namely, the controversies between an individualist ethics of freedom of contract and the opposing altruist value of interpersonal responsibility, between the danger of judicial arbitrariness and the demand for equitable flexibility, and, finally, between the legitimacy of judicial law making and the insistence on judicial restraint. This article attempts to show a pattern behind this structure, consisting of a relatively small set of typical arguments which appear in ordered pairs of diametrical oppositions such as those mentioned above. This suggests that good faith language is much less tailored to context and much more dependent on a preexistent structure of stereotyped arguments than it usually appears in the practice of legal discourse. This insight implies a new assessment of the cogency of argument patterns deployed in theoretical and doctrinal statements on good faith.
27
Clarke, Malcolm. "RESCISSION: INDUCEMENT AND GOOD FAITH." Cambridge Law Journal 63, no. 2 (June 18, 2004): 286–88. http://dx.doi.org/10.1017/s0008197304296581.
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28
Klein, John. "Good faith in international transactions." Liverpool Law Review 15, no. 2 (1993): 115–41. http://dx.doi.org/10.1007/bf01079916.
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29
Sentosa, Muhammad Amin, Siti Malikhatun Badriyah, and Yunarto. "Good Faith Principles in International Business Contract Law." International Journal of Law and Politics Studies 5, no. 2 (April 15, 2023): 27–33. http://dx.doi.org/10.32996/ijlps.2023.5.2.3.
Повний текст джерелаАнотація:
This study aims to analyze the principles of good faith in international business contract law. The results showed that the principle of good faith is an honest transaction which has 3 main elements, namely: First, good faith and honest transactions as the basic principles underlying the contract; Second, the principles of good faith and honest transactions in the UPICCS (UNIDROIT Principles of International Commercial Contracts) emphasize the practice of international trade; Third, the principles of good faith and honest transactions are compelling. The objective is to encourage the application of the principles of good faith and fair dealing in all international commercial transactions. The manifestation of efforts to promote legal harmonization can be seen when contracts or national laws do not find the necessary rules, or there is a legal vacuum (gaps), so the principles of UNIDROIT (The International Institute for the Unification of Private Law) can be used as a reference.
30
Yaacob, Nurli, and Nasri Naiimi. "GOOD FAITH IN FRANCHISE CONTRACT." International Journal of Law, Government and Communication 5, no. 19 (June 10, 2020): 118–27. http://dx.doi.org/10.35631/ijlgc.519009.
Повний текст джерелаАнотація:
Good faith has been defined as justice, fairness, reasonableness, decency, taking no chances, and so on. The concept of good faith has long been rooted in contract law under the jurisdiction of Civil law, although the definition of it is still debated until today. However, the view of the Common Law tradition does not recognize the concept of good faith as long as the contract is entered into with the freedom of contract and both parties abide by the terms of the contract. Given that a franchise contract involves a long-term contract and always been developed, it is impossible to define both rights and responsibilities base on express terms only. As such, the franchise contract gives the franchisor the right to exercise its discretion in executing the contract. It is in this context that the element of good faith is very important to ensure that the franchisor does not take advantage of the franchisee and that the business continues to prosper. Therefore, the objective of this article is to discuss the concept of good faith in a franchise contract. The findings show that the common law system that initially rejected the application of the concept of good faith also changed its approach and began to recognize the concept of good faith as it is very important for relational contracts such as franchise contracts.
31
Rustamjonovna, Mahsuda Tadjibayeva. "The Principle Of Good Faith In Civil Law." Turkish Journal of Computer and Mathematics Education (TURCOMAT) 12, no. 4 (April 11, 2021): 1062–67. http://dx.doi.org/10.17762/turcomat.v12i4.615.
Повний текст джерелаАнотація:
The article explores the essence of the principle of good faith in modern civil law, the doctrines in which this principle is reflected, the functions of the principle of good faith in civil law, the need for the concept of good faith in civil law and problems in the application of this principle in the Civil Code. To this end, the author discusses not only the expression of this principle in doctrines, but also the extent to which it has been studied in civil law in foreign countries, and the expression of the principle of good faith in the current Civil Code and the draft of the new Civil Code of Uzbekistan.
In addition, a number of civil law relationships that have not been sufficiently explored have been studied, requiring the systematization of knowledge due to the different manifestations of the category of integrity, as well as the practical significance of this category in civil law relations. In this regard, this article
highlights the shortcomings of the principle of good faith in the current Civil Code of the Republic of Uzbekistan.
32
Rustamjonovna, Mahsuda Tadjibayeva. "“THE PRINCIPLE OF GOOD FAITH IN CIVIL LAW”." Psychology and Education Journal 58, no. 1 (February 8, 2021): 4905–12. http://dx.doi.org/10.17762/pae.v58i1.1709.
Повний текст джерелаАнотація:
The article explores the essence of the principle of good faith in modern civil law, the doctrines in which this principle is reflected, the functions of the principle of good faith in civil law, the need for the concept of good faith in civil law and problems in the application of this principle in the Civil Code. To this end, the author discusses not only the expression of this principle in doctrines, but also the extent to which it has been studied in civil law in foreign countries, and the expression of the principle of good faith in the current Civil Code and the draft of the new Civil Code of Uzbekistan.
In addition, a number of civil law relationships that have not been sufficiently explored have been studied, requiring the systematization of knowledge due to the different manifestations of the category of integrity, as well as the practical significance of this category in civil law relations. In this regard, this article
Highlights the shortcomings of the principle of good faith in the current Civil Code of the Republic of Uzbekistan.
33
Castronovo, Carlo. "Information Duties and Precontractual Good Faith." European Review of Private Law 17, Issue 4 (August 1, 2009): 559–71. http://dx.doi.org/10.54648/erpl2009037.
Повний текст джерелаАнотація:
ABSTRACT: This article deals with the relationship between information duties and the good faith principle within the Draft Common Frame of Reference (DCFR). After an introduction regarding the origin of the Common Frame of Reference (CFR) and its end, the author explains the meaning of the concurrence between the Principles of European Law (PEL) and the acquis communautaire. Both of these sources deal with precontractual duties although at a different level. Whereas the PEL set up a general duty to act in good faith during negotiations, on this point the acquis concentrates on duties of information with regard to the consumer. The opinion of the author is that the generalization of these duties, which has been operated by the DCFR, is a good result as well as the insertion of them in the more general good faith principle. If information is loyalty, it cannot but be a general duty, at least in European legislation, which shows to have gone ahead in comparison with many national legal systems in Europe. There are also situations in which information has become contents of the contract. As to the method of connecting the acquis with PEL, this article tries to demonstrate that the double inspiration of the DCFR could only be satisfied by at the same time giving room to the task of the acquis and to the necessity of coherence, which was the preoccupation of PECL and now of PEL. A clear example of this is the new meaning that the original rule on negotiations contrary to good faith, originally adopted by PECL and inherited by PEL, has acquired following the flowing together of the last ones and the acquis; now the violation of duties of information also makes a negotiation contrary to good faith.
34
Sattari, Ebrahim Shoarian. "Observation of Good Faith Principle in Contract Negotiations: A Comparative Study with Emphasis on International Instruments." Australian Journal of Business and Management Research 03, no. 09 (September 3, 2013): 56–61. http://dx.doi.org/10.52283/nswrca.ajbmr.20130309a06.
Повний текст джерелаАнотація:
Good Faith is one of the important principles in contract law. This principle is inherited from Roman law and it has been mostly developed in civil law system. Observation of Good faith and Fair dealing in French and German law and many other countries is considered as legal obligation. Good faith, also, is of special stand In Chinese law of contract. Since Good faith is considered as important and valuable, it has been recognized in Common Law System and adopted in English and American law. Islamic law also contains numerous examples of obligations that are based on Good Faith principle. Nowadays, good faith principle has been incorporated in important international instruments such as CISG, UPICC, PECL, and DCFR and its scope has been developed. If good faith principle was being considered in fulfilling of contracts, today it also is considered as important in pre-contractual and conclusion stages of contracts. The aforementioned documents contain regulations for observing good faith in preliminary negotiations, conclusion of contract, fulfilling of contract and the interpretation thereto. The present Article is attempted to show that Good faith is important in all stages including preliminary negotiation and it should be incorporated in domestic legislations. Remedy for breach of this duty in the pre-contractual sphere should be limited only to compensation for damages.
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Aryan, Shahram, and Bagher Mirabbasi. "Study on English and French Law." Journal of Politics and Law 9, no. 2 (March 31, 2016): 232. http://dx.doi.org/10.5539/jpl.v9n2p232.
Повний текст джерелаАнотація:
Accepting the principle of good faith in the pre-contractual period entails certain consequences. Observing this principle would require that the parties cooperate and exchange information by exhibiting utmost honesty, transparency, and seriousness in their preliminary talks towards achieving their mutual goals; and that each party, while respecting the information confidentiality of the other party and refusing to enter into parallel negotiations, shall respect the other party’s interests. The principle of good faith is not explicitly recognized as a general rule in Iran’s statutes. Although the necessity of observing the principle of good faith in all laws and obligations in all instances including the pre-contractual period can be proved using the principle of induction from the criteria stipulated in Article 8, Iran’s Law of Civil Liability (i.e., Law of Torts) as well as other current Iranian regulations, this method would not convince the legal Iranian community to accept the principle of good faith as a general rule. Therefore, social and economic imperatives would necessitate that the principle of good faith should be recognized explicitly in the Iranian statutes.
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Tettenborn, Andrew. "Good Faith, the DCFR and Shipping Law." European Journal of Commercial Contract Law 7, no. 1 (June 29, 2015): 67–76. http://dx.doi.org/10.7590/187714615x14328875962744.
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Hunt, Chris D. L. "GOOD FAITH PERFORMANCE IN CANADIAN CONTRACT LAW." Cambridge Law Journal 74, no. 1 (March 2015): 4–7. http://dx.doi.org/10.1017/s0008197315000112.
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IN Mellish v Motteux (1792) 170 E.R. 113, 157, Lord Kenyon observed that “in contracts of all kinds, it is of the highest importance that courts of law should compel the observance of honesty and good faith”. This passage echoes a similar statement by Lord Mansfield 25 years earlier in Carter v Boehm (1766) 97 E.R. 1162, 1910. Despite these early statements of principle, the modern common law has been notoriously hostile to the notion that contracting parties are under a general duty of good faith in the performance of their obligations (see W.P. Yee, “Protecting Parties' Reasonable Expectations: A General Principle of Good Faith” (2001) 1 Oxford U. Commonwealth L.J. 195), and there is certainly “no firm line of modern cases to support such an obligation” in English law (see L.E. Trakman and K. Sharma, “The Binding Force of Agreements to Negotiate in Good Faith” [2014] C.L.J. 598). Nevertheless, some recent decisions in Australia, Canada, and England have begun to imply obligations to perform certain types of promises, in certain classes of contracts, in an honest manner, crafting, in the words of Lord Bingham, “piecemeal solutions in response to piecemeal problems” (Interfoto Picture Library v Stiletto Visual Programmes Ltd. [1989] 1 QB 433, 439 (CA)). A recent English example is Yam Seng Pte Ltd. v International Trade Corporation Ltd. [2013] EWHC 111 (QB) in which Leggatt J. found there to be an implied duty of “honesty” and “fidelity to the bargain” in the context of a long-term distribution contract. Importantly, His Lordship emphasised that whether such obligations can be implied is a matter of construction, which involves ascertaining the parties' objective intentions through conventional techniques such as the principle of business efficacy. As implying such obligations depends entirely on the context of each contract (at paras [137]–[143]) there is, at present, no general principle of good faith performance in English contract law, despite some case-by-case recognition (see Mid-Essex Hospital Services N.H.S. Trust v Compass Group UK and Ireland Ltd. [2013] EWCA Civ 200, at [105], [150]).
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Шеховцева, Е. В. "ON GOOD FAITH OF TAXPAYERS." ЖУРНАЛ ПРАВОВЫХ И ЭКОНОМИЧЕСКИХ ИССЛЕДОВАНИЙ, no. 4 (December 26, 2023): 44–48. http://dx.doi.org/10.26163/gief.2023.76.12.006.
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В статье утверждается, что презумпция невиновности, характерная для норм уголовного законодательства, в сфере налоговых отношений трансформируется в принцип добросовестности налогоплательщиков, который многие авторы трактуют как презумпцию. Однако понятие «добросовестность налогоплательщика» и критерии отнесения налогоплательщика к этой категории, несмотря на отсутствие законодательного закрепления, нашли отражение в правоприменительной практике, прежде всего в судебной, в том числе Конституционного Суда Российской Федерации (РФ).Авторами рассмотрены главные этапы трансформации подходов к определению понятия «добросовестность налогоплательщиков» через анализ правоприменительной практики, в том числе через оценку действий налогоплательщиков на основе судебной практики. Presumption of innocence, deemed to be specific to the criminal law norms, in the context of tax relationships transforms into the principle of «good faith of taxpayers», which has been interpreted by many authors as a presumption. However the very concept «good faith of a taxpayer» and the criterium of assigning a taxpayer to this category have been reflected in law enforcement practice despite the lack of legislative support including the Constitutional Court of the Russian Federation. The article focuses on major steps of transformation of approaches to determining good faith of taxpayers through analysis of law enforcement practices including the one through the assessment of taxpayers’ performance on the basis of judicial practice.
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Mikheeva, I. E. "Legal features of the regulatory function of the principle of good faith." Courier of Kutafin Moscow State Law University (MSAL)), no. 11 (January 14, 2021): 158–65. http://dx.doi.org/10.17803/2311-5998.2020.75.11.158-165.
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The author analyzes the application of the principle of good faith by courts when considering disputes as a rule of law The article concludes that since good faith is an evaluative concept, there are no criteria for it in the law, when applying the principle of good faith by courts, it is necessary to specify and clarify the criteria of good faith for the consideration of specifi c disputes. Courts form rules, in some cases different from the rules established by the law, after which they are widely applied as rules of law. The paper concludes that the recognition of the possibility of applying the principles of law as norms of law determines the appearance of the law- making role of courts. The article concludes that liability under article 10 of the civil code for violation of the principle of good faith also indicates the possibility of applying the principle of good faith as a rule of law.
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Cherkasova, Oxana Vladislavovna. "Establishment of the principle of good faith in national civil law: historical, doctrinal and law enforcement aspects." Genesis: исторические исследования, no. 2 (February 2020): 15–27. http://dx.doi.org/10.25136/2409-868x.2020.2.32101.
Повний текст джерелаАнотація:
The object of this research is establishment of the principle of good faith at different historical periods in the context of formation of various approaches in the doctrine and practice of civil law. Due to the absence of unanimity of opinions regarding the formation of moral-ethical categories within the national civil law, this scientific field is considered problematic and interesting for examination. The subject of this research is the historical, ideological and practical prerequisites that influenced the formation of concept of the principle of good faith in the national civil law. The scientific novelty consists in the proposed by the author principle of good faith in the historical, doctrinal and practical aspects, which leads to suggestion of future course of development of the principle of good faith in the national civil law by means of improving the current civil legislation. The conclusion is drawn that at the present stage the principle of good faith, despite the universality and crosscutting nature, initially forethought by the concept of development of civil legislation, should be concretized in the various civil legal relations, taking into account their peculiarities and specifics. Such type of circumstantiation of the general provisions of law would increase the possibility for introduction of corresponding amendments into the principle of good faith on the level of social norms.
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Uçaryılmaz, Talya. "The Principle of Good Faith in Public International Law." Estudios de Deusto 68, no. 1 (July 3, 2020): 43–59. http://dx.doi.org/10.18543/ed-68(1)-2020pp43-59.
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Honesty, loyalty and reasonableness together refer to the principle of good faith in contemporary private law. The principle of good faith historically emerged as a natural law principle deriving from Roman law of nations, the universal set of rules applicable for all mankind. However, it also has immense historical effects on the early modern theories of international law. Being based on natural law and morality, good faith is well-equipped to be a fundamental standard of behavior in contemporary international law concerns. Good faith manifests itself as pacta sunt servanda as the basis of international treaty law. As a principle referring to honesty, loyalty and reasonableness, it guarantees the prohibition of the abuse of power and provides equitable solutions in legal relationships between sovereigns and private actors. Accordingly this article examines the application of the classical Roman principle of good faith in international law from a transhistorical perspective to clarify its contemporary applications, taking refugee law as an example. It concerns itself with the fundamental elements of good faith, the historical emergence of the principle, its relationship with early modern international legal theories and its contemporary significance in refugee law.Received: 23.10.2019Accepted: 29.12.2019Published online: 03.07.2020
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Dewanti, Rizky Febri, Pujiyono Pujiyono, and Yudho Taruno Muryanto. "The application of good Faith principle of precontract in common law and civil law contry." Research, Society and Development 10, no. 16 (December 5, 2021): e139101623621. http://dx.doi.org/10.33448/rsd-v10i16.23621.
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In Indonesia, development of application of good faith principle in legal agreement focuses on the application of Civil Code (KUHPerdata) where scope is still placed on the implementation of agreement. It is as if Civil Code has not recognized the existence of good faith principle at pre-contract stage. In comparison, according to modern agreement theory that parties who suffer losses in pre-agreement/contract stage or at negotiation stage, their rights also deserve to be protected. Thus, pre-agreement/contract promises will have legal implications for those who violate them. This will be seen in countries that have common law and civil law systems. An important issue in this case relates to the principle of good faith at the pre-contract stage which creates a gap with the provisions in the legislation. To analyze these problems, legal research was conducted with the black-letter law paradigm. Technique of collecting legal materials in this research used library research. Legal materials are analyzed deductively and utilize the method of interpretation (hermeneutics). Results showed that the application of the principle of good faith at the pre-contract stage in Common Law and Civil Law countries had differences. In the Civil Law system, good faith is highly emphasized in the stage of contractual negotiation. Whereas in the Common Law system, it prioritizes efforts to restore rights of aggrieved party in pre-contract stage. Parties who do not have good faith at the pre-contract stage have legal consequences for cancellation of the agreement.
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Manery, Barnabas Dumas. "Makna Dan Fungsi Itikad Baik Dalam Kontrak Kerja Konstruksi." SASI 23, no. 2 (April 2, 2018): 136. http://dx.doi.org/10.47268/sasi.v23i2.101.
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Neither law nor doctrine can provide a clear understanding of good faith in contract law. In general, the study of good faith tends to mix up the notion of good faith as the rule of law in good faith as the principle of contract law. Based on this understanding, Article 1338 Paragraph (3) BW is considered as the legal principle of the contract so it concludes that the obligation of good faith exists only at the stage of contract implementation. Such opinion has obscured the meaning and function of good faith as the principle of contract law, which became the legal issue in this study. The approach used is (statute approach), (case approach), and (conceptual approach). Based on the results of the research, it is found that the essence of good faith is honesty and fairness which contains the meaning of trust, transparency, autonomy, obedience, without coercion and without deceit; as well as the function of the principle of good faith is to complement the legal system through the legislator and authorize through the authority of the judge in the form of adding, limiting and excluding a contractual obligation. Thus the law becomes flexible and able to guarantee complex and dynamic community legal needs.
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Sipiorski, Emily. "Interpretation in Good Faith and Its Relevance in International Investment Law." International Community Law Review 23, no. 1 (March 31, 2021): 57–78. http://dx.doi.org/10.1163/18719732-12341458.
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Abstract The principle of good faith drives forward the interpretation of provisions of international investment treaties. While the tribunal must interpret the treaty in good faith, the parties – as well as the tribunal – are also obliged to fulfil their treaty and contractual obligations in good faith. This creates a complex interplay of interpreting customary international law in the form of behavioural obligations. During this period of reconsideration of the system, these interpretative and behavioural aspects of the principle of good faith may provide an opening to a more cohesive system of investment protection. The following contribution approaches the tribunals’ power to interpret the good faith behavioural obligations of parties and considers its future value.
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정성헌. "Comparative Research on the Good Faith in American Private Law: Good Faith in Precontractual Stage." 법과정책 23, no. 1 (March 2017): 187–205. http://dx.doi.org/10.36727/jjlpr.23.1.201703.007.
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Shutenko, Oksana. "APPLICATION OF THE PRESUMPTION OF GOOD FAITH IN CIVIL PROCEDURAL LAW, LEGAL PROCEEDINGS AND NOTARIES." Slovo of the National School of Judges of Ukraine, no. 1-2(38-39) (November 21, 2022): 142–50. http://dx.doi.org/10.37566/2707-6849-2022-1-2(38-39)-13.
Повний текст джерелаАнотація:
The universality of one of the fundamental presumptions – good faith – should be explored in various fields of law. The relevance of this study is as follows: at the ideological and philosophical level – overcoming the separation of branches of law and creating an understanding of law as a whole, at the practical level – improving the legal system and clarifying the features of this presumption in regulating different groups of legal relations. Based on the presumption of good faith, any behavior is regarded as positive, so the very fact of harm is regarded (presumed) automatically as dishonest behavior. The presumption of good faith, which is enshrined as a basic principle of civil law, also manifests itself in other branches of law – civil procedural law, in criminal law and process, in notaries, which makes it possible to attribute it to the fundamental principles of law. In civil law, good faith is manifested in the freedom of contract, presumptions of the validity of the contract, the guilt of the tortfeasor, and so on. In civil proceedings, these are manifestations of the dispositive nature of civil proceedings and the prohibition of abuse of procedural rights. In criminal law and procedure, the principle of good faith is manifested through the presumption of innocence of a person. In a notary – by securing a high probability of rights and facts that are being certified. For civil procedural law, the specificity of the application of presumptions is associated with the restriction of the procedural form itself. Procedural actions of subjects of civil procedural legal relations are clearly regulated by law and must be carried out in accordance with it. In notarial activity, the principle of good faith is manifested in dispositiveness, the desire of individuals to exercise their civil rights in good faith and bear responsibilities, guaranteeing, consolidating their will by notarization, establishing maximum certainty, indisputability of specific legal relations. Key words: civil process, legal proceedings, presumptions in law, good faith, principles of law, presumption of good faith, notaries.
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Mamay, Evgeniy, and Igor' Antropov. "The principle of good faith in international private law." Advances in Law Studies 7, no. 4 (December 19, 2019): 41–45. http://dx.doi.org/10.29039/2409-5087-2019-7-4-41-45.
Повний текст джерелаАнотація:
The article relates to the complicated issue of understanding the principle of good faith in international private law. The authors explore an understanding and the main rules of fulfilling of the principle of good faith as it is enacted in the International Conventions and unifications of international private law (UNIDROIT, PECL). The range of requirements for determination the content of good faith in the actions of participants in civil law relations is established based on the analysis of law enforcement practice of different national and international judicial instances.
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Lapo, Pavel, Nikita Shapran, and Denis Chesnokov. "Evolution of the category "good faith" in the Roman private law." Advances in Law Studies 11, no. 4 (December 27, 2023): 36–40. http://dx.doi.org/10.29039/2409-5087-2023-11-4-36-40.
Повний текст джерелаАнотація:
The article covers the emergence and development of one of the central categories of Roman private law - the principle of good faith. Changes in the content of this category are analyzed. Special attention is paid to the division of the moral-ethical category of good faith (fides) and its legal manifestation (bona fides). The conclusion is drawn about the necessity of observing the principle of historicism when referring to the Roman understanding of the category of good faith, as well as the importance for Russian civil law doctrine of identifying the understanding of good faith that has developed in modern society.
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Viven-Wilksch, Jessica. "The Adventures of Good Faith." Alternative Law Journal 40, no. 2 (June 2015): 89–92. http://dx.doi.org/10.1177/1037969x1504000205.
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Alyakin, Dmitry S. "Good faith performance of contractual obligations under Russian law." Vestnik of Saint Petersburg University. Law 13, no. 1 (2022): 107–27. http://dx.doi.org/10.21638/spbu14.2022.106.
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The paper examines the implementation of the good faith performance of contractual obligations under Russian law, and identifies requirements addressed to parties in this area. The relevance of the paper stems from the increasing Russian legislator’s attention to extending the application of good faith in civil circulation, including the performance of obligations. The research aim is to examine the nature of good faith performance of obligations. The research material was the Civil Code of the Russian Federation, Russian jurisprudence, and domestic authors’ studies in the field of civil law. The methodological basis consisted of general scientific (analysis, synthesis, analogy) and special legal methods (comparative-legal, formal-logical, systemic, structural-functional methods, and a method of interpretation). It is justified that the principle of good faith, being a general principle of the Russian Civil Law, is implemented, in particular, in the field of performance of obligations. The implementation of this principle regulated by legal norms ensures a balance between the interests of a creditor and debtor, allows achieving the result implied and pursued by the law, and maintains the stability of civil circulation. It seems appropriate to consider good faith in doing business, cooperation between parties, and cost-effective performance as requirements contributing to the understanding and achieving goals and objectives of the principle of good faith in relation to the performance of obligations. It is important to continue working on the formation of a uniform approach to the implementation of the listed requirements in the mentioned field by improving the existing legal regulation. The effectiveness of this process will contribute to increasing the level of judicial discretion within the established limits and will allow to guide parties in patterns of conduct aimed at achieving objectives of obligations, in other words, their due performance.