Concept Of Good Faith Research Articles

The Concept of Good Faith in Complete Systemic Land Registration in Realizing Legal Guarantee

Complete systematic land registration is governed by Ministerial Regulation Number 6 of 2018. This regulation underscores the government’s responsibility to ensure certainty and protection of land ownership, which is a fundamental component of the government's obligations under Article 19 of Law Number 5 of 1960 concerning Agrarian Principles. The regulation enforces the Basic Agrarian Law by stipulating in Article 22 that in the absence of evidence, a declaration must be made in good faith. This provision reflects the commitment to operationalize the theory of good faith in the realm of complete systematic land registration, aiming to solidify legal certainty. In this system, the state acts as a guarantor, assuring the accuracy and truthfulness of registrations made in good faith. This paper explores how good faith provides legal certainty and describes the impact and effectiveness of this approach in the context of land ownership rights.

Buna-credință în legislația din Quebec

During the Quebec-Romania bilateral days held as part of the celebrations of the 160th anniversary of the Faculty of Law of the University of Bucharest, the speakers were invited to present the state of the law in their respective jurisdictions based on the common French root. Good faith was codified in the French Civil Code in art. 1134 C.N., a codification that was not repeated until 1994 in Quebec. Despite this lack of codification, the courts, influenced by French doctrine, began to recognize the importance and the various components of the concept of good faith in contract as of the 1980s. This text explains the developments of good faith in Quebec law, as well as the limits to it.

“THE PRINCIPLE OF GOOD FAITH IN CIVIL LAW”

The article explores the essence of the principle of good faith in modern civil law, the doctrines in which this principle is reflected, the functions of the principle of good faith in civil law, the need for the concept of good faith in civil law and problems in the application of this principle in the Civil Code. To this end, the author discusses not only the expression of this principle in doctrines, but also the extent to which it has been studied in civil law in foreign countries, and the expression of the principle of good faith in the current Civil Code and the draft of the new Civil Code of Uzbekistan.
 In addition, a number of civil law relationships that have not been sufficiently explored have been studied, requiring the systematization of knowledge due to the different manifestations of the category of integrity, as well as the practical significance of this category in civil law relations. In this regard, this article
 Highlights the shortcomings of the principle of good faith in the current Civil Code of the Republic of Uzbekistan.

Implementation of the good faith principle in civil legislation: issues of recodification

The article is devoted to one important problem of recoding of the civil legislation in Ukraine – the process of further implementationof the Good Faith principle in Civil Code.It was generally accepted that the important step towards the modernization of the governing civil law is the re-codification oflegislation in force. It is for this purpose that Concept of modernization of the Civil Code of Ukraine (Recodification) was publishedby the end of 2020.The overall analysis of the Concept of modernization points to one important conclusion. The document involves it’s probablythe recodification of settled law and does not alter the main principles set out in Civil Code, although every change in legislation in anyparticular case requires a general explanation. It is unclear whether that process involves recodification or progressive development(post codification), but what was clear is that the system upgrade of civil legislation need to be done.In this paper a comprehensive analysis of the reception of Roman good faith principle in the modem civil legislation of Ukraineis performed. In the Roman Jurisprudence this natural law principle has got the name bona fides. In this research paper is determinedthat bona fide principle is an effective means counteraction to abuse of subjective civil rights.The meaning of good faith, though always based on honesty, may vary depending on the specific historical context in which itis used. As in Roman times well as nowthere two universal criterion of good faith: fair price and common sense. For example, a personbuys in good faith when he or she holds an honest belief in his or her right or title to the property and has no knowledge or reason toknow of any defect in the title.In the modern doctrine of private law good faith is defined generally as honesty in fact and the observance of reasonable commercialstandards of fair dealing.The process of reception of the good faith principle in the modern civil law is investigated separately. One can draw conclusionthat further development of civil legislation of Ukraine should be based on the classic concept of good faith (bona fides).With a view to enforcing this Concept of modernization, it is proposed to amend the following articles of the Civil Code ofUkraine: art. 3, 8, 12, 13, 229–233, 509. In these articles the principle of good faith is implemented.The main conclusion is that there is no need to detail this principle with due to the numerous casual norms.

Good faith acquisition of ownership in a car under german law (according to the italian judge): note to Tribunale di Ivrea, 20 april 2019, n° 416

The commented decision by the Tribunale di Ivrea, of 20 April 2019, contains three maxims: (i) under Art. 51(1) of Law 218/1995, good faith acquisition of ownership in a movable good (in that case, a motor vehicle) is governed by the law of the State where the good is situated; (ii) the court-appointed expert’s opinion on foreign law goes beyond the assigned tasks where it examines the evidence and applies the rules to the facts, tasks which are not entrusted to the expert and reserved to the judge; (iii) the concept of good faith in § 932 BGB is comparable to that in Art. 1147 C.C.

Application of the principle of good faith in proving cartel agreements аt tenders

The article discusses the issues of interpretation and applicability in competition law and in antitrust law enforcement practice of the civil law principle of good faith. The theoretical view of the concept of good faith as incompatible with the nature of public law is criticized.The law enforcement practice in cases of violation of antitrust laws by participants of anticompetitive agreements was studied, which influenced the formation of key judicial positions related to assessing compliance with the principle of good faith by bidders. According to the results of the study, it was concluded that the civil law principle of good faith is at the same time a general principle of competition law as an integrated branch of law combining public and private principles of legal regulation.It is noted that the use of this principle for legal assessment of the actions of participants in cartel agreements at tenders is not only an important tool to counteract cartelization of state and municipal procurements, but also a means of creating a business ethics of entrepreneurial relations in the public interest.

Concept of Good Faith in Domestic Laws – To Debrief the Common Understanding

Good faith is described as 'the foundation of all law, or a fundamental principle of law'. O'Connor suggests that good faith derived from 'the necessity for a minimum of human cooperation and tolerance if group living is to emerge and survive'. Although good faith has origins in the earliest human societies, O'Connor suggests that the Roman concept of bonafides (associated with trustworthiness, conscientiousness and honourable conduct) represents its most direct ancestor. By about 1450 it was applied in both civil and common law systems, and was 'reflected in specific rules incorporating or referring to good conscience, fairness, equitable dealing and reasonableness'.4 As early as 1659, good faith was mentioned in Treaty between France and Spain, signed to end the Franco-Spanish War that had begun in 1635. Before that, in 1625, Grotius had referred to the Aristotelian parameter that if good faith has been taken away, “all intercourse among men ceases to exist”. Grotius also referred to Cicero‟s famous observation according to which “in good faith what you meant, not what you said, is to be considered”. The civil law regimes tend to require that contracts be formed and performed in good faith. If parties act in bad faith, this leads to mistrust, making contracting more complex and expensive. A rule of good faith increases contracting parties' confidence that contractual obligations will be performed. The principle of good faith is less established and less uniform in common law systems. At one extreme is the United Kingdom, which has no general doctrine of good faith. However, equity developed many doctrines to promote specific notions of good faith, including the concepts of undue influence and promissory estoppel. Good faith is also recognised in relation to particular classes of contracts, for example, contracts of insurance. At the other extreme is the United States, “where every contract imposes upon each party a duty of good faith and fair dealing in its performance and its enforcement”.

İyiniyet Kavramının Ceza Hukukundaki Yeri

Good faith is unfamiliar to criminal law because it is a private law-based concept. In criminal law, the concept of good faith has no normative counterpart in crime theory. Moreover, the doctrine of criminal law does not include the notion of goodwill within the theory of crime. However, since the concept of good faith does not have a normative counterpart in crime theory, it is not possible to accept it as a form of appearance of the moral element of the crime or as a form of view of the moral element, nor it is able to substitute intention. Because the intention is the deliberate and desired realization of the objective elements of the crime, it has a completely different meaning and function to the concept of good faith.

Comparative Study on Principles of Good Faith and Fair Dealing in Contract Laws of the United States of America and Bhutan

Good faith is an abstract concept, yet the existence and importance of good faith in contracts is undeniable. This paper discusses the relevance of good faith in the context of Bhutan where, despite being a society built on the basis of honesty and fairness, the first modern Bhutanese contract law does not contain the concept of good faith. After a thorough review of Bhutanese judicial decisions, and the nation’s development principle of Gross National Happiness (GNH), this paper makes the recommendation that the concept of good faith be re-applied into Bhutanese contract law. Recommendations are drawn after contrasting the Bhutanese context with the time-tested experience of the United States and its application of good faith in contracts. Through this discourse, the paper will provide a brief introduction to the Bhutanese legal system, its origins of good faith, unique policies, and legal practices.

Good Faith, PECL and Mixed Systems

This paper considers the use of the concept of good faith in the Principles of European Contract Law (PECL) and argues that, while there is some inconsistency, it is mainly deployed in an over-arching and active way. This however contrasts with the way the concept has been used in the mixed jurisdictions of Louisiana, Quebec, Israel, Scotland and South Africa. Although in the first three, codified or semi-codified, systems, a general concept of good faith has only relatively recently been developed, the courts appear to use it in a relatively cautious way. In the latter two, uncodified systems, the concept operates in a more subterranean manner, possibly reflecting the incremental nature of development in a case law system. The paper argues that good faith should generally be seen as an underlying rather than an over-arching principle, informing and reflected in rules of law rather than providing means of escape from them. It is also suggested that good faith needs to be distinguished from public policy as a means of regulating contractual freedom.

The Concept of ‘Good Faith’ in the Particular Case of Preferential Arrangements

Under EU preferential trade arrangements reduced or zero rates of customs duties apply to goods originating in certain countries. However, a customs debt may be incurred when the certificate of origin of the goods is deemed to be incorrect. In such cases, import duties are collected by way of post-clearance recovery since imports should not have benefited initially from preferential treatment, whereas importers may plead good faith to claim the repayment or remission of customs duties. The plea of good faith is based on the grounds of an error made by the competent authorities themselves and on the fact that the debtor was not aware nor should be aware of the irregularities committed in the country of origin. Two issues arise: (1) to what extent are EU importers required to be aware of the irregularities committed in the countries of origin; and (2) what is the impact that a notice to importers published by the European Commission may have on the good faith of importers. The first issue depends basically on the scope of the principle of good faith, so it is necessary to take into account the degree of diligence (duty of care) that should be required to EU importers. The second issue deals with the minimum level of legal certainty that may be required by notices to importers which have a direct impact on the good faith and may therefore be decisive as to determine whether importers should have been aware of irregularities committed in the country of origin.

The Evolution of Good Faith in Western Contract Law

The concept of good faith as it pertains to Western contract law has existed since the Roman Republic. As a preeminent roman legal scholar, Cicero wrote: “Ut inter benos bene agier oportet et sine fraudatione” - one must act well, as among good men without fraudulence. The Roman law recognized the concept of bona fides and most western civilizations have developed legal systems that require some degree of good faith between contracting parties. For the Roman lawyer, good faith or bona fide meant fidelity to promise. At common law it asks what a reasonable person would take the parties to have meant at the time of their agreement. Civil law nations such as Germany have codified the obligation of good faith, as has the United States in its Uniform Commercial Code, but its concept of good faith is not as extensive as its civil law peers. The UK has not formally codified good faith, but it has been recognized in many judicial decisions. Additionally, all of the above-mentioned countries are at least signatories to the United Nations Convention on Contracts for the International Sale of Goods (CISG) , and the International Institute for the Unification of Private Law (UNIDROIT), which both mandate that parties contract in good faith. But while good faith is at least recognized by these countries, it has not been implemented even handedly. History has altered good faith, and it has evolved to suit the needs of the cultures that have adopted it. This paper seeks to explore the transmission of the concept of good faith from Roman law to common law, from civilian to case law systems.

Where Is the Concept of Good Faith in the Restatement of Employment?

This article examines the standard that the Restatement of Employment law recently adopted for the implied covenant of Good Faith and Fair Dealing (CGFFD) in section 2.07. The standard covers accrued benefits, but misses most of the bad faith and unfair dealing behaviors that show up in the cases when employers take advantage of their employees for reasons unrelated to work. These bad behaviors often take the form of unduly restricting an employee’s decisionmaking about their lives, their liberty, privacy, or autonomy, by implicitly or explicitly threatening to discharge the employee at will. The Restatement favors at-will rather than the CGFFD when the two principles are in tension but provides no reasoned justification for the preference. The article explains the difference between what a nuanced, and well-developed CGFFD standard can do, and the just cause and public policy exception standards. The article suggests that Robert Summers’ “excluder” concept would provide a better, more responsive, and well-delineated method for developing the CGFFD in employment settings. Finally, the article concludes how weak the Restatement’s version of the CGFFD is in comparison to Alaska and California more fully explained jurisprudence on the CGFFD.

Doctrine of good faith in contracts: A comparison between conventional and islamic laws

The doctrine of good faith is a vital issue amongst the contractual issues of this period. It is considered a main goal of every recognized law of contract system to be promoting good faith as well as fair dealing in forming and performance of contracts. Basically, it has been a common argument in supporting the notion of good faith that it helps in addressing bad faith manner in a clear and direct conduct, allow the law to safeguard the realistic anticipations of women and men as well as encourage a philosophy of contractual collaboration that would lead to economic efficiency. This study looks into the concept of good faith from both the conventional law and Islamic law (Shariah) to find to what extent both laws comply with each other. The study is doctrinal which utilizes descriptive approach of qualitative research methodology which relies on secondary data in form of text books, journals, newspapers, related websites etc. The study found that both the conventional law and Islamic law support the principle of good faith. Shariah recognized the principle of good faith as it asks the parties in a contract to abide by the requirement in various stages of the contract, especially sale contract. Thus, the concept of good faith should have the same application in both Islamic and conventional jurisdictions.

Adam Smith and the Social Foundation of Agreement: Walford v Miles as a Relational Contract

That the reception in subsequent case law of Leggatt J's outstanding discussion of good faith in Yam Seng Pte Ltd v International Trade Corporation Ltd has been disappointing demonstrates the continuing failure to appreciate the normative constitution of economic exchange and the law of contract. This paper re-examines the concept of economic exchange which may be derived from the work of Adam Smith in order to show that Smith did not conceive of exchange as a system of solipsistic self-interest but as self-interest which is formed on the basis of the mutual respect of the parties to the exchange. The significance of Smith's views for the law of contract will be demonstrated by a re-examination of the rejection of good faith in Walford v Miles in light of those views. Whilst it is moot whether the law of contract should recognise a general doctrine of good faith, that law must become self-conscious of the mutual respect it requires of parties to a contract which is indicated in the concept of good faith.

Good Faith: ‘English Hostility’, Unworkable Obligations for Commerce, or a Healthy Development? What to Expect in Canada?

On 30 October 2016, a significant new landmark in international trade was reached by the signing of the Comprehensive Economic and Trade Agreement, the CETA, between the European Union, the EU, and Canada. In an over 1,000 pages long document, the parties outline details on how to ‘strengthen their close economic relationship, … create an expanded and secure market for their goods and services through the reduction or elimination of barriers to trade and investment, [and] establish clear, transparent, predictable and mutually advantageous rules to govern their trade and investment’. In accordance to the Joint Interpretative Instrument on the CETA the agreement ‘embodies the shared commitment of Canada and the European Union and its Member States to free and fair trade’ and ‘creates new opportunities for trade and investment for Europeans and Canadians’. In respect to small- and medium-size enterprises, ‘for whom trying to meet the cost requirements of customers is a constant challenge’ the document specifically states that the CETA will allow ‘virtually all manufactured goods to be exported duty-free’. Notwithstanding the severe opposition that signing of this agreement has met on both sides of the Atlantic, the initiative is also met with positive tones. Although it is too early to say, as to what extend the CETA will contribute to the expansion of trade between the signing parties, it is expected that far more contracts will be signed and agreements entered into between businesses incorporated in Canada and the EU, respectively. Businesses in the civil law continental Europe are used to the concept of good faith in negotiations and subsequent performance of their contractual obligations. Businesses in the common law jurisdictions, however, have a quite different view to that regard. Canada has inherited its contract law principles from the United Kingdom. On the question of good faith, however, it seems like the jurisdiction is departing – albeit cautiously – and moving away from the traditional English hostility towards good faith in contractual obligations, thus, creating its path and a unique conception of it. This article will attempt to elucidate some important aspects of the current developments in connection to good faith in Canada. Hopefully, the article will provide some guidance in how to understand good faith and what to expect in a Canadian business and legal environment to avoid misunderstandings and unpleasant consequences that potentially could arise from that.

Applicability, Similarities, Differences among CISG, UPICC and PECL; And the Binding Nature of the Concept of Good Faith under These Instruments

This essay discusses the applicability of the United Nations (UN) Convention on Contracts for the International Sales of Goods (CISG); the International Institute for the Unification of Private Law’s (UNDROIT) Principles of International Commercial Contracts (UPICC); and the Principles of European Contract Law (PECL).It also elucidates the similarities and differences among these three instruments; and evaluates whether the concept of good faith becomes binding by the virtue of application of the instruments.

Looking for Taxable Persons’ Good Faith – Stehcemp Case

In this article, the author explains that it seems that, based on ECJ case law, the “good faith principle” has become a prerequisite for taxable persons in order to be able to deduct the input VAT they have incurred. After explaining the legal requirements for deducting input VAT that are set in both the VAT Directive and the Polish VAT Law, the author provides a deep analysis of the Stehcemp case, focusing on the concept of good faith given by the ECJ in this and previous cases and also examinig the potential impact of this decision on Polish law.

Good Faith: A Puzzle for the Commercial Lawyer

Good Faith: A Puzzle for the Commercial Lawyer

Mediating in Good Faith in the English and Welsh Jurisdiction: Lessons from other Common Law Countries

Litigants are now required to consider mediation and can be penalized under the Civil Procedure Rules if they unreasonably refuse to use an ADR procedure. As litigants are expected to participate in mediation, there are mounting concerns, particularly in common law countries that mandate attendance before accessing the courts, that parties are obstructing the process by engaging in ‘bad faith’. Some common law countries have used the concept of ‘good faith’ negotiation to design rules or codes to regulate conduct in mediation. The English and Welsh jurisdiction identifies mediation as a type of negotiation, but has no developed concept of negotiating in ‘good faith’. This paper first reviews the case law on good faith negotiation in England and Wales, before considering the concept of ‘good faith’ in mediation and assessing whether or how the conduct of parties in mediation could be controlled. The concept of good faith in mediation may not provide the answer because of definitional difficulties and a review of Australia, Hong Kong and the USA indicates that many rules or procedural codes are confined to a ‘minimum level’ of participation. Furthermore, court control of conduct is limited by the rules of without prejudice in negotiation and confidentiality rules in mediation, which limits court review unless there is substantial impropriety such as blackmail or duress. This paper proposes that the issue of the conduct of parties in mediation must be given serious consideration, particularly in view of judicial pressures in some quarters for courts to be given increased powers to direct litigants to mediate. Mandating mediation may lead to more incidences of bad faith or to party involvement without serious engagement. An argument is made to draw on the already developed principles of unreasonable behaviour in litigation in order to define the expectations of reasonable conduct in mediation.