Unification of criteria for the assessment of good faith in negotiating contracts: from national to international through the intercession of the european experience

• Author: Mirela Carmen Dobrila
• Position: Faculty of Law, Law Departament, 'Alexandru Ioan Cuza' University of Iasi, Iasi, Romania
• Pages: 1-10

AGORA International Journal of Juridical Sciences, http://univagora.ro/jour/index.php/aijjs/index

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

No. 2 (2015), pp. 1-10

1

UNIFICATION OF CRITERIA FOR THE ASSESSMENT OF GOOD FAITH IN

NEGOTIATING CONTRACTS: FROM NATIONAL TO INTERNATIONAL

THROUGH THE INTERCESSION OF THE EUROPEAN EXPERIENCE

M.C. Dobrilă

Mirela Carmen Dobrilă

Faculty of Law, Law Departament,

”Alexandru Ioan Cuza” University of Iași, Iași, Romania

*Correspondence: Mirela Carmen Dobrilă, Assistant PhD, Post-doctoral Researcher,

”Alexandru Ioan Cuza” University of Iași, Boulevard Carol I, no. 11, Iași, Romania

E-mail: mirela.dobrila@uaic.ro

Abstract

This paper seeks to emphasize the idea and the efforts to unify the criteria for the

assessment of good faith in the context of contract negotiation. In this regard, the paper

observes the vision of the Romanian legislator regarding good faith in contract negotiation

but also the existing vision at European level by highlighting links with existing coding

projects at European contract law level and with other foreign civil codes in the context of

certain aspects of comparative law.

Keywords: good faith, bona fides, unification, contract negotiation, European

contract law, comparative law

Introduction

The absence of an express provision for good faith as a general principle in the

previous Civil Code has been corrected through the amendment brought by the new

Romanian Civil Code (NCC) (Law no. 287/2009, republished, in force since 2011 with the

subsequent amendments and supplements) regarding good faith through the express

regulation of this principle. Recognition (express this time) in the New Romanian Civil Code

of the principle of good faith, as a general principle, is based also on the fact that this

principle is expressly regulated in other foreign civil codes and drafted after the model of

similar provisions in certain coding projects at the level of European contract law. Taking

after the model of other foreign civil codes and the model of similar provisions in some

coding projects from the European law of contracts, the Romanian legisl ature has chosen to

introduce a separate text in respect to good faith when negotiating the contract, as an

embodiment of the principle of good faith.

Good faith in contract negotiations: from national to international by through

the intercession of the European experience

Although in the previous Romanian Civil Code (1864) good faith was not regulated as

a general rule, based on the interpretation of the provisions within the Code relating to certain

applications of good faith, it was concluded that good faith should be regarded as general rule.

Good faith is expressly regulated in the New Civil Code, Article 14 paragraph (1),

under which any individual or legal person must exercise his rights and perform his civil

duties in good faith, in accordance with public order and good morals. Reference is made to

Article 11 NCC which stipulates that one can not be derogated from the laws that are of

interest for the public order or good morals by agreement or unilateral legal acts.