Legal terminology delimitation
The German legal term good faith is the literal translation of the Latin term bona fides . In terms of content, however, the two terms are not completely congruent, as the term in Roman law generally denotes honest and reliable action in legal dealings, i.e. also includes everything that is commonly understood in German legal language with the term “ good faith ”. The German concept of good faith (lack of subjective awareness of wrongdoing despite objective injustice) is, in contrast, a conceptual narrowing.
Legal systems of the Romansh and various related legal circles use the term bona fides or the corresponding local language expressions mostly in the original, general sense of Roman law. If, for example, the French, Spanish or Italian lawyer speaks of “good faith” ( bonne foi, buena fe or buona fede ) or “good faith” (or uses the English expression “good faith” in international conversations ), it can do so Good faith in the narrower sense may be included, but in German it is often more apt to express good faith or faithful faith . Accordingly, in foreign legal languages, as a rule, unfaithful or improper conduct is generally referred to as “bad faith” .
Good faith represents a substitute solution in the event that the author of the disposal is lacking, but a disposal transaction should still be effective. Good faith, however, only overcomes the lack of justification, not a lack of agreement or surrender. These basic facts must therefore be fulfilled if a rule of good faith is to occur. A distinction must be made between:
- good faith in the property : rule of BGB .
- good faith in the power of disposal : (exceptionally permissible and protected) HGB (right of disposal). A good faith in the power of representation of the person disposing of the person is not protected (not provided for by law). When providing a power of attorney certificate in the original contractor is usually entitled to take the protection of good faith claim ( BGB). According to German Commercial Code, the provisions of good faith of the German Civil Code (BGB) are also applied to commercial purchases if the good faith of the purchaser affects the seller's authority to dispose of the item for the owner . (2) BGB (statutory ban on sale), BGB (official ban on sale), (3) BGB (interim disposition) or
The acquisition of ownership of movable property in good faith in accordance with German Civil Code (BGB) is of particular legal importance . An acquirer can acquire ownership of the property from a transferor who is not the owner but is the owner . The seller's power to procure ownership of the thing forms the “legal certificate” of the property on which the purchaser can rely. However, the prerequisite is that the acquirer is in good faith with regard to the property right of the seller. He must neither know nor, due to gross negligence, not know that the seller is not the owner, according to (2) BGB. The law thus defines a definition of “good faith”. Exceptionally, however, the purchase in good faith in accordance with German Civil Code (BGB) is excluded if the item has been lost to the actual owner, e.g. stolen.
The protection of the purchase of bearer securities in good faith (only excluded in the case of gross negligence and intent on the part of the purchaser) is regulated more extensively in relation to movable property. In favor of bearer securities, there is a legal presumption that the owner of a bearer security is also its owner ( (1) sentence 1 BGB). In addition, bearer papers (and money ) can be acquired in good faith even if they have been stolen, lost or stolen from the previous owner ( (2) BGB). Exactly that is excluded for other movable objects ( Abs. 1 BGB). Pursuant to (2) of the German Commercial Code (HGB) in conjunction with (2) WG and SchG , a bona fide purchase of lost (within the meaning of (1) BGB) order papers is possible, provided that the respective owner is through a related , to which the issuer can identify a chain of endorsements . “Somehow lost” - as formulated in the WG and SchG - includes voluntary and involuntary loss of property. In the case of order papers, good faith is therefore generally not linked to possession of the document, but to a seamless chain of endorsements. Not only the good faith in the property of the transferor is protected, but also the good faith in his power of disposal. A bona fide purchase of Rektapapiere , the transfer of which follows exclusively the rules of the law of obligations and not the rules of property law, is generally not possible because the law of obligations does not know a good faith acquisition; at most , a purchase in good faith is possible within the framework of BGB.
Good faith also plays a role in the owner-owner relationship according to BGB. It regulates the constellation that the owner of the thing of another, namely the owner, holds in his possession, but is not entitled to do so. Here, too, a distinction is made between good and bad faith. The subject of good faith here is the fact that the owner appears to be entitled to possession : If the owner knows that he has the property unlawfully in his possession, he is less worthy of protection than the unlawful owner who does not know from the lack of ownership White. BGB stipulates stricter liability in this case, and he will only receive reimbursement of expenses under difficult conditions ( BGB). If, on the other hand, the owner lacks the awareness of the illegality of his exercise of property, he is “in good faith” and is treated privileged compared to the bad faith owner. If the owner, who was originally in good faith, learns of the illegality of his property afterwards, he loses his good faith from the point at which he becomes aware and is no longer particularly worthy of protection from then on ( (1) sentence 2 BGB).
The certificate of inheritance also establishes protection in good faith ( BGB).
In commercial transactions, due to the flexibility and speed of business transactions and the experience of merchants , good faith in the power of disposal is sufficient ( German Commercial Code). On the other hand, whether the good faith in the power of representation (i.e. acting in someone else's name) is protected is very controversial, but should probably be rejected.
Swiss law does not provide a legal definition of the term. It is best described as follows:
"Good faith is the lack of awareness of injustice despite a legal deficiency."
The BV of the Swiss Confederation states in Art. 5 Para. 3 that the state and the private sector act in good faith. In civil law, the presumption of good faith is used as concretization . According to Art. 3 ZGB , its existence is presumed , d. H. whoever wants to deny the good faith of his opponent must provide evidence of his bad faith (and not the other way around). In addition, the assumption must be overturned with the proof to the contrary, a counter- evidence is not sufficient.
However, anyone who could not be in good faith in the attention that may be required of him under the circumstances is not entitled to invoke good faith.
The following list is not exhaustive:
- Art. 714 para. 2 ZGB : acquisition of property in good faith
- Art. 884 para. 2 ZGB : acquisition of lien in good faith
- Art. 895 Paragraph 3 ZGB : Right of retention
- Art. 933 ZGB : purchase of entrusted property in good faith
- Art. 935 ZGB : purchase of money and bearer securities in good faith
In Anglo-Saxon law , good faith is an abstract and comprehensive term for a sincere belief or a sincere motive to behave in legal life without malice or intent to cheat. It corresponds to good faith in the continental European legal system .
The concept is particularly at Justice asking and commercial law in the foreground. For example, the purchaser of property is protected by the Uniform Commercial Code , which has been adopted by all US states. According to the provisions in 1-201 (9) and 2-403, for example, a merchant can acquire ownership of assets that originate from a non-owner, provided that the acquirer can prove his good faith in the conduct of the transaction and uses reasonable commercial standards of fair trade Has. Unusual or suspicious circumstances destroy good faith. In the case of non-merchants, good faith is referred to as the “bona fide buyer doctrine” and leads to similar legal protection .
Use of language
Good faith is often used in English to express that an action was meant well , even if the result deviates from the original intention. Such an act is therefore undertaken with good intent and is often done for a disinterested motive.
Example: The English language Wikipedia speaks of a good faith edit to express that the change to an article in the encyclopedia by an author was made with good intentions, even if it is ultimately rejected for other reasons.
- Alfred Koller : The good and the bad faith in the general law of obligations (= work from the juristic seminar of the University of Friborg Switzerland. 70). Universitätsverlag, Freiburg (Switzerland) 1985, ISBN 3-7278-0338-X (At the same time: Freiburg (Switzerland), university, habilitation paper, 1984/1985).
- Rudolf Leonhard : Bona fides . In: Paulys Realencyclopadie der classischen Antiquity Science (RE). Volume III, 1, Stuttgart 1897, Col. 694-697.
- Carl Georg von Wächter : The bona fides especially when it comes to the acquisition of property. Edelmann, Leipzig 1871, ( digitized version ).
- BGH , judgment of January 11, 2005, Az. XI ZR 272/03, full text , on the protection of good faith in the case of a bank power of attorney .
- Hans Josef Wieling : Property Law. 5th, revised edition. Springer, Berlin a. a. 2007, ISBN 978-3-540-37403-9 , p. 127.
- Peter Jäggi : Bern Commentary on Art. 3 ZGB, Bern 1966.
- Swiss Civil Code of December 10, 1907 (as of January 1, 2018) Federal Council of the Swiss Confederation, accessed on July 3, 2018.
- Legal Dictionary on Good Faith