Observation of Good Faith Principle in Contract Negotiations: A Comparative Study with Emphasis on International Instruments

2013 ◽  
Vol 03 (09) ◽  
pp. 56-61
Author(s):  
Ebrahim Shoarian Sattari
Keyword(s):  
Islamic Law ◽  
German Law ◽  
Good Faith ◽  
Roman Law ◽  
Fair Dealing ◽  
Contract Negotiations ◽  
Law System ◽  
American Law ◽  
Special Stand ◽  
International Instruments

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.

Good Faith, Fair-Dealing and Disclosure Requirements in Hire-Purchase Contracts in Malaysia: Islamic and conventional Perspectives

2009 ◽  
Vol 6 (1) ◽  
pp. 123-148
Author(s):  
Hidayah Binti Abdullah
Keyword(s):  
Eighteenth Century ◽  
Islamic Law ◽  
Common Law ◽  
Good Faith ◽  
Fair Dealing ◽  
Disclosure Requirements ◽  
Governing Principle ◽  
Conventional Systems ◽  
Made In

This paper aims to analyze the importance of the element of good faith, fair-dealing and disclosure requirements in a hire-purchase contract from both Islamic and conventional financing perspectives. The application of good faith is determined at a particular time by those standards of honesty, fairness and reasonableness prevailing in a given community that are considered appropriate for formulation in new, revised rules. In the eighteenth century, the concept of fair-dealing was viewed as an essential concept and emerged as a governing principle applicable to all common-law contracts. Under Islamic Law, the elements of good faith (iÍsÉn) and fair-dealing (Ñadl) are important and highly emphasized. One of the conclusions made in this research is that good faith and fair-dealing are two crucial elements in hire-purchase contracts, both in the Islamic and conventional systems.

Law Out of Context

2000 ◽  
Vol 4 (2) ◽  
pp. 147-167 ◽  
Author(s):  
Alan Watson
Keyword(s):  
South African ◽  
German Law ◽  
Law And Society ◽  
Roman Law ◽  
Basic Principles ◽  
American Law ◽  
Legal Arguments ◽  
The Relationship ◽  
Law Professors ◽  
Industrial State

Law is out of context much of the time, even perhaps most of the time. A society makes law: the society changes, politically or economically, hut the law remains the same or little changed. Often this has astonishing consequences. This paper takes a number of striking examples that have been generally unremarked or underemphasised to indicate some of the dimensions of the problem of the relationship between law and society. Justinian's Digest and Institutes provide numerous instances, while classical Roman jurists never present law as it was in reality and Roman rhetoricians present legal arguments without law. Modern South African cases on delict often proceed on arguments drawn from the Roman lex Aquilia of 287 BC, though it is accepted on all sides that the basic principles of that law had been rejected very much earlier. German law professors in the nineteenth century present German law for a modernised industrial state on the basis of an interpretation of misinterpreted Roman law. Today's American law professors present American law as it never was, is not, and never will be. What is startling about these arguments and conclusions is that the legislators, judges, legal writers and law professors had, and have, no intention to deceive or mislead.

scholarly journals “False Friends” and Some Other Phenomena Reflecting the Historical Determination of the Terminology of Hungarian Private Law

2020 ◽  
Vol 33 (3) ◽  
pp. 729-747 ◽  
Author(s):  
András Földi
Keyword(s):  
German Law ◽  
Point Of View ◽  
Historical Background ◽  
Roman Law ◽  
Private Law ◽  
Legal Language ◽  
Fair Dealing ◽  
Legal Norms ◽  
Current Terminology

Abstract This article deals with some phenomena of the Hungarian legal language from a historical point of view, with special regard to the terminology of private law going back to Roman law tradition. The author aims, on the one hand, to present the historical background of the current terminology of Hungarian private law by means of some representative examples. On the other hand, it is attempted at demonstrating that “false friends” and some further misunderstandings in the current terminology of Hungarian private law can be led back to the historical determination of the concepts/terms in question. A certain Hungarian legal language existed already in the 16th c., however it reached the common European level by the middle of the 19th c. This development took place mainly under the influence of the Austrian and German law and legal science. Due to the translation of foreign legal terms to Hungarian since the 19th c. there emerged some “global” difficulties of legal terminology also in the Hungarian legal language. As the most important example, the reception of bona fides can be mentioned. It was an amendment of the Hungarian Civil Code in 2006 which tried to eliminate the misunderstandings as regards the principle of good faith (and fair dealing) conceived formerly by many Hungarian jurists exclusively in subjective sense. The history of reception of the German notions of Gültigkeit and Wirksamkeit in Hungary is extremely intriguing, too. Hungarian jurists did not follow the pattern of the German BGB but developed this pair created by Windscheid by drawing a clear distinction between the validity and effectiveness of legal transactions (as well as of the legal norms), similar to the Italian terminology (validità v. efficacia). Sometimes the reception of German notions happened in a less successful way (e.g. in the case of negatives Interesse created by Jhering, which can be qualified as a “false friend” in Hungary in comparison with the original German notion). Despite the important foreign, especially German impacts, the Hungarian legal language is an autonomous one having several remarkable features which deserve attention also in comparison with terminology of the Western legal cultures.

scholarly journals A recepção do duty to mitigate the loss no direito brasileiro

2019 ◽  
Vol 1 (41) ◽  
Author(s):  
José Eduardo Figueiredo de Andrade Martins
Keyword(s):  
Legal System ◽  
Common Law ◽  
Good Faith ◽  
Roman Law ◽  
Law System ◽  
Legal Provisions ◽  
The Face ◽  
The Common ◽  
The Creation ◽  
Subjective Rights

RESUMOEste artigo trata da recepção do duty to mitigate the loss no direito brasileiro, como uma solução para o ordenamento jurídico brasileiro do problema da inobservância da mitigação pelo credor em face de um inadimplemento, seja evitando ou minimizando o seu prejuízo quando este é considerado evitável. Desenvolve-se a hipótese de que é possível incorporar o duty to mitigate the loss como um desdobramento do princípio da boa-fé objetiva, como um delimitador do exercício de direitos subjetivos que se irradia por todo o ordenamento jurídico. Para tanto, é realizada uma revisão de suas origens no direito romano e no sistema de common law para que, a seguir, sejam estabelecidos os pressupostos de sua existência no ordenamento jurídico brasileiro, propondo ainda a criação de uma regra de aferição da razoabilidade. Ao final, são apontados os dispositivos legais já presentes no direito brasileiro que contêm a norma de mitigação.PALAVRAS-CHAVEDireito privado. Duty to mitigate the loss. Boa-fé. Responsabilidade contratual. ABSTRACTThis article regards the reception of duty to mitigate the loss in Brazilian law, as a solution to the Brazilian legal system of the problem of non-compliance with mitigation by the creditor in the face of breach, either avoiding or minimizing its damage when it is considered avoidable. It develops the hypothesis that it is possible to incorporate duty to mitigate the loss as an offshoot of the principle of objective good faith, as a delimiter of the exercise of subjective rights that radiates throughout the legal system. To this end, a review of its origins in Roman law and in the common law system is carried out so that, subsequently, the presuppositions of its existence in the Brazilian legal system are established, proposing the creation of a reasonability measurement rule. At the end, the legal provisions already present in Brazilian law that contain the mitigation rule are pointed out.KEYWORDSPrivate law. Duty to mitigate the loss. Good faith. Contractual liability.

scholarly journals Legal Standing of Pre-Contractual Good Faith Principle as a Law Reformation of Indonesian Contract Law

2020 ◽  
Vol 2 (1) ◽  
pp. 73-85
Author(s):  
N. Ike Kusmiati
Keyword(s):  
Common Law ◽  
Contract Law ◽  
Civil Code ◽  
Negotiation Process ◽  
Good Faith ◽  
Future Contract ◽  
Fair Dealing ◽  
Law System ◽  
Whole Process ◽  
Common Law System

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

VI. Der römische Eigentumsvorbehalt als Vorbehalt des Besitzes

2015 ◽  
Vol 132 (1) ◽  
Author(s):  
Jakob Fortunat Stagl
Keyword(s):  
Point Of View ◽  
Good Faith ◽  
Roman Law ◽  
Ius Commune ◽  
Functional Equivalent

AbstractRoman retention of title clauses as retention of possession. It is the dominant view that Roman law did not know retention of title clauses (pactum reservati dominii) which is, accordingly, considered to be an invention of the medieval ius commune. This opinion is true to the extent that retention of title was inefficient from the Roman point of view because the buyer as possessor was always in the position of acquiring ownership by acquisitive prescription (usucapio), the requirement of good faith being met in these instances. The Roman lawyers, therefore, devised different means to make sure that the buyer would get the use of the sold good (detentio) without becoming possessor thus preventing the dreaded usucapio. This ‘retention of possession’ (Besitzvorbehalt) is the Roman functional equivalent to modern retention of title.

The Defence of “Change of Position” in English and German Law of Unjust Enrichment

2004 ◽  
Vol 5 (1) ◽  
pp. 23-46
Author(s):  
Florian Mächtel
Keyword(s):  
German Law ◽  
The Other ◽  
Unjust Enrichment ◽  
American Law ◽  
The Law

In its § 142(1) theAmerican Restatement of the Law of Restitutionprovides that “[t]he right of a person to restitution from another because of a benefit received is terminated or diminished if, after the receipt of the benefit, circumstances have so changed that it would be inequitable to require the other to make full restitution.” The notion that the recipient of an unjustified benefit must in principle return not more than the enrichment that has actually “survived” in his hands, is not only fundamental to the American law of restitution, but can also be found in English and German law.

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