History of the Principle of Good Faith (Treu und Glauben) before the Adoption of the German Civil Code

Abstract

Treu und Glauben (good faith) in German law is today a fundamental principle in virtually all legal relations between equal subjects of law in private law, or between persons who are in relations of power and authority in the field of public law among themselves. Today, Treu und Glauben serves as a general legal principle in different fields of law - obligations, property, labour, family etc., procedural and public law. Recently, good faith as a principle of civil law has been introduced into the Russian Civil Code. The principle of good faith in Russian law is yet to be understood, realized and used effectively. For a better understanding of good faith one needs to know and understand how this legal phenomenon developed in the historical context in German law. In Germany, the attitude to good faith has been mixed throughout the existence of §242 of the German Civil Code. However, the fact that Treu und Glauben has an invaluable importance not only for civil law but for the whole legal system of Germany has not been disputed in the German law. This article, based on the study of the German legal literature, considers the history of legal approaches to good faith which resulted in the German Civil Code §242 "Treu und Glauben". The historical periods of Roman law and the legal category of bona fides, the Middle ages and the emergence and meaning of the German term Treu und Glauben are considered. An important milestone was the XIX century, when there appeared the first codifications that contained rules preceding §242. The author describes the process of preparation of the German Civil Code draft and the rules of Treu und Glauben, alongside with the legislative adoption of the Code and the debate concerning §242.