Abstract
The general clause of good faith was one of the innovations of the Brazilian Civil Code, enacted in 2002. It came into force in January 2003, in order to widespread ethics in private affairs. Indeed, good faith was applied in specific cases, such as the “theory of appearance” or the requirement of utmost good faith in insurance contracts. But in the Civil Code of 2002, heavily influenced by German, Italian and Portuguese codes, good faith is applied to provide operability, ethicity and sociality in private relations as well as in the enforcement of private law by courts. In this sense, good faith has been used to impose duties of consistency, information and cooperation between the parties of a transaction. The aim of this paper was to introduce an overview of good faith, its consecration in the Brazilian Civil Code and then to analyze its application in Brazilian Courts in the last ten years.
Highlights
The concept of good faith is easy to understand but hard to define due to its compliance in situations apparently opposite one another
This idea of relying on general clauses for the purpose of updating certain legal text was used in the preparation of the Brazilian Civil Code, but no one took into account the reasons why this occurred
An interesting analysis of good faith comes from economists, which formulated the concepts of asymmetric information and transaction costs, such as enhancements to classical economic thought
Summary
The concept of good faith is easy to understand but hard to define due to its compliance in situations apparently opposite one another Scholars present it as an example of indeterminate legal concept, whose content is defined by case law from logical inductions, which resulted in the use of vague expressions such as “honesty ”, probity and ethics. Taking advantage of this semantic indeterminacy, good faith was used during the twentieth century as an “operational” concept, conveyed by general clauses – legal norms whose hypothesis of incidence is comprehensive, able to preserve current law – in order to fix regulatory gaps in a particular jurisdiction. In the German case, these problems were corrected with the Schuldsmodernisierungsgesetz in 2002
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