Good faith in domestic sales law

• Author: Emanuela Iftime
• Position: Faculty of Law, Private Law Department, 'Alexandru Ioan Cuza' University of Iasi, Romania
• Pages: 68-80

AGORA International Journal of Juridical Sciences, www. juridicaljournal.univagora.ro

ISSN 1843-570X, E-ISSN 2067-7677

No. 4 (2014), pp. 68-81

68

GOOD FAITH IN DOMESTIC SALES LAW

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E. Iftime

Emanuela Iftime

Faculty of Law, Private Law Department

“Alexandru Ioan Cuza” University of Iai, Romania

*Correspondence: Emanuela Iftime, Alexandru Ioan Cuza University of Iai, 11 Carol I St.,

Iai, Romania

E-mail: ema.iftime@yahoo.com

Abstract

Good faith is a true principle widely e stablished 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.

Keywords: good faith, sales law, contract law, Romanian law, national legal

systems.

Introduction

Lord Mansfield was referring, in the 18th century, to good faith as a general principle

applicable to all contracts

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. The uniform application of the concept of good faith must be

based on the idea that good faith is not a moral obligation. It is true that good faith originates

from honesty, which is nothing but a sum of virtues, but it can be presumptuous to claim that

good faith is the same as morality. In thi s way, consistency would remain a goal, since

morality is a social duty based on cultural norms. Good faith becomes a self-contained

concept when it becomes a legal concept, entering the legal field.

Good faith in Romanian law

In most civil legislations, the postulate of good faith is established as a legal relative

presumption, which can be overturned by a ny evidence, including simple presumptions. In

this regard, the Romanian Civil Code provides in art. 14 that any natural or legal person shall

exercise their rights and perform their civil obligations in good faith, in accordance with the

public order and good morals, good faith being presumed until proven otherwise. There was

no text in the Civil Code of 1864 that would establish the concept and the presumption of

good faith.

The concept of exercising rights and obligations in good faith, in accordance with the

public order and good morals represents an element of novelty brought by the Romanian Civil

Code which i s also consistent with the provisions of the Constitution (art. 57- the

constitutional rights and freedoms shall be exercise in good faith, without violating the rights

and freedoms of others).

In the Civil Code we can find different applications of the concept of good faith. Good

faith is a fundamental principle of the civil law and art. 1170 singularizes this solution in

terms of the contract, covering the contractual period in which negotiations are performed, the

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This work was supported by the strategic grant POSDRU/159/1.5/S/141699, Project ID

141699, co-financed by the European Social Fund within the Sectorial Operational Program

Human Resourses Development 2007-2013.

2

Pelly v Royal Exchange Assurance Co. [1757] Burr. 341, 347.