The principle of good faith has its historical origin in the bona fides in Roman law : a Roman citizen was very fond of his good faith ; This meant, for example, his reliability and integrity in right-hand traffic.
The principle of good faith is often referred to to this day. It is different in the states. Typical is a reference such as the German law of obligations : Within a debt ratio which is liable to BGB required to effect the performance as good faith with regard to the prevailing practice require. In Switzerland, this principle even has constitutional status and is therefore more extensive.
As a general clause , the principle of good faith is abstract. Case groups have been formed to specify the situation. These include, for example, the prohibition of abuse of law , the prohibition of contractual contradiction to one another (“ venire contra factum proprium ”) and the Dolo agit principle. The case groups primarily serve to cover those facts that are not already covered by a special legal specification of the principle. Such can be found in § ff. BGB, for example in the obligation to provide goods of average type and quality in the case of generic debts. The connection between the principle of good faith and (2) of the German Civil Code (BGB), which makes it clear that the parties to a contract not only fulfill the obligations stipulated in the contract, but also take into account the rights, legal interests and interests of the other party, is particularly clear have to take. Before Section 241 (2) BGB was incorporated into the BGB in 2002, the content of this provision was derived solely from good faith (see positive breach of contract ).
scope of application
In principle, good faith is only applicable within a contractual relationship . This results from the wording of BGB. Outside of a contract, the barriers to action by the individual are lower. According to BGB, only actions that serve to harm the other are not permitted ( ban on harassment ). From BGB it also follows that intentionally immoral behavior is inadmissible. However, this demarcation is often broken. In many cases, the principle of good faith in doctrine and jurisprudence is also applied outside of a contract. An important example was the figure of culpa in contrahendo until it was codified in the BGB as part of the modernization of the law of obligations . Section 242 of the German Civil Code (BGB), according to which the debtor is obliged to provide his service as required in good faith, taking into account customary practice, is also referred to as the “king's norm” of German contract law. The Federal Court has included in the decision BGHZ 2, 184, and the case law with: " Higher than the wording of the law is its purpose and meaning. It is the task of the judge to make this useful for the application of the law in individual cases and then to find a reasonable and cheap solution to the dispute in good faith . "
There are controversies as to whether the principle is also applied in public law , in particular in administrative procedural law and procedural law. The general need for legal protection as a prerequisite for the admissibility of legal proceedings is derived by many out of good faith. In part, good faith is also viewed as an elementary principle of justice that governs every legal system and requires the exercise of rights and the fulfillment of obligations in a way that the other side can trust.
The principle of good faith has a supra-legal status as a general legal principle in Liechtenstein. Good faith encompasses all actions within the framework of the law and, in addition to being explicitly mentioned in Art 2 PGR , as a fundamental legal principle and basis of the legal community and legal system, also has an impact on all areas and norms of civil law , in particular the ABGB , and vice versa For example, the “ good morals clause ” in § 879 Paragraph 1 ABGB broadcasts across all civil law (§ 1 ABGB). This principle of good faith is also evident from the mandatory observance of “fair dealings” when interpreting contracts (Section 914 ABGB).
For example, the following is derived from Art 2 Para. 1 SR or Art 2 PGR:
- Interpretation and regulatory limits of general terms and conditions (GTC) (see also § 914 ABGB);
- Completion of incomplete contracts ( BGE 115 II 488);
- Contractual clarification and information obligations (BGE 116 II 519 ff., 119 II 456 ff.);
- Culpa in contrahendo (BGE 116 II 431 ff.);
- Principle of trust in contracts (BGE 119 II 177 ff .; 123 III 18 ff, 165 ff.);
- Liability of trust (BGE 120 II 331 ff., 121 III 350 ff., 123 III 220 ff, 124 III 297 ff., 130 III 345 ff.);
- Adaptation of contracts to changed circumstances ( Clausula rebus sic stantibus - BGE 120 II 155 ff., 129 III 618);
- Requirement to exercise rights with care and prohibition of excess (BGE 121 III 219 ff.).
This general legal principle therefore has an inter-legal binding effect in Liechtenstein. In the public sector, good faith is also an aspect of the principle of equality ( prohibition of arbitrariness ) and as such a general (in many areas of application, unwritten) legal principle . The violation of this trust in the public sector is arbitrary behavior, usually on the part of the authorities or authorities. The extent to which the protection of legitimate expectations should also apply to the person subject to the norm and the authority has not yet been conclusively clarified in Liechtenstein.
In the Swiss legal system, good faith plays a comparable role, even if the legal formulations e.g. T. differ. See, for example, Civil Code : “1) Everyone has to act in good faith in exercising his rights and fulfilling his duties. 2) The apparent abuse of a right finds no legal protection. "Paragraph 1 of the Swiss
In the Federal Constitution of the article defines five principles the rule of law union action , the guiding principle of good faith as a high legal interest for public agencies and private entities. This article is part of Title 1 General Provisions and comes before the fundamental rights ( ). According to the case law of the Swiss Federal Supreme Court , the principle of good faith derived from the Federal Constitution also includes the requirement of honest, trustworthy and considerate behavior. The Swiss Federal Supreme Court has therefore referred to Art 2 ZGB as a “guiding star for the application of the law” (BGE 83 II 348 f) and as a “barrier to all legal exercise” (BGE 45 II 398) because of its special guiding function.
This standardization is expressly reaffirmed in the relationship between state organs and all persons in Article 9 in connection with the “protection from arbitrariness” ().
The term “good faith”, the content of which corresponds to the practice of honest intercourse mentioned in ABGB , dominates civil law in general: Legal transactions must not be misused to put someone else in, but should take place honestly (HS 2398 / 69).
UN sales law
In the UN Convention on Contracts for the International Sale of Goods , the bona fides (“ good faith ”) is mentioned as a legal asset worthy of protection in Article 7 paragraph 1: “When interpreting this Convention, its international character and the need to take into account its uniform application and the maintenance of good faith in to promote international trade ”. Nevertheless, it is controversial whether contracts that are subject to the UN sales law are to be interpreted in good faith. During the emergence of the UN Sales Convention, the inclusion of a more far-reaching passage as a gateway for national legal views and a source of legal uncertainty was rejected.
Basic rules of EU contract law
The term “good faith” (English: good faith , French: bonne foi , “good faith”) can be found in Art. 2: 101 of the Acquis communautaire : In pre-contractual dealings, parties must act in good faith. Article 2.1 of the draft for a Common European Sales Law also provides that the parties should be guided in their cooperation by the principle of good faith and the principle of fair business dealings. Parties who do not adhere to this can lose the rights they are actually entitled to or become liable for damages (Art. 2.2). These regulations cannot be contractually excluded (Art. 2.3).
- Konrad Schneider: Good faith in the rights of obligations of the civil code. Beck, Munich 1902.
- Konrad Schneider: Good faith in civil processes and the dispute over the process management. A contribution to answering the litigation management question. Beck, Munich 1903.
- Konrad Schneider: For understanding the concept of good faith. In: Archives for civil law. Vol. 25, 1905, pp. 269-315 . ,
- Rudolf Henle: Good faith in legal dealings. Lecture given on November 6, 1911 in Bonn in the cycle of scientific lectures of the Gustav-Adolf-Frauenverein. Vahlen, Berlin 1912.
- Franz Wieacker : On the legal theoretical clarification of § 242 BGB (= Law and State in and Present. 193/194, ). Mohr, Tübingen 1956.
- Gottfried Baumgärtel : Good faith, good morals and ban on harassment in the investigation process. In: Zeitschrift für Zivilproceedings . Vol. 69, 1956, pp. 89-131.
- Hans-Wolfgang Strätz : Good faith. 1: Contributions and materials on the development of "good faith" in German private law sources from the 13th to the middle of the 17th century (= legal and political science publications of the Görres Society. NF 15). Schöningh, Paderborn 1974, ISBN 3-506-73315-X .
- Ernst Zeller: Good faith and prohibition of abuse of rights. Principles and specification of Art. 2 ZGB. Schulthess - Polygraphischer Verlag, Zurich 1981, ISBN 3-7255-2135-2 (also: Zurich, University, dissertation, 1981).
- Bernhard Pfister: The more recent case law on good faith in civil proceedings (= European university publications. Series 2: Law. 2341). Peter Lang, Frankfurt am Main et al. 1998, ISBN 3-631-31810-3 (also: Regensburg, University, dissertation, 1996/1997).
- Antonius Opilio : Working Commentary on Liechtenstein Property Law. Volume 1: Art. 1 to Art. 264. Legal status : January 2009. Edition Europa, Dornbirn 2009, ISBN 978-3-901924-23-1 ( google books link ).
- Bawar Bammarny: Good faith and UN sales law (CISG). A comparative legal study with a focus on the Islamic legal system (= European university publications . Series 2: Law. 5173). Peter Lang, Frankfurt am Main et al. 2011, ISBN 978-3-631-61470-9 (also: Heidelberg, University, dissertation, 2010).
- Bernd Rüthers : The unlimited design. On the change in the private legal system under National Socialism. 7th, unchanged edition, expanded by a new afterword. Mohr Siebeck, Tübingen 2012, ISBN 978-3-16-152058-7 .
- Similarly in Art 6: 2 Burgerlijk Wetboek (Netherlands), Art 1134 Code Civil (France) ; Art 1337 Codice Civile (Italy) . Art 8 EU Charter of Fundamental Rights and various secondary legal acts (e.g .: Directive 86/653 / EEC; Directive 93/13 / EEC; Directive 95/46 / EC and in the case of the ECJ , e.g .: Rs 159/02 ; 237/02; 82/03 and others).
- Paragraph and notes quoted from Antonius Opilio , Working Commentary on Liechtenstein Property Law, Volume I, EDITION EUROPA Verlag, 2009; Art 2 SR - margin no.2.
- For this the Federal Administrative Court (NJW 1974, 2247) and the prevailing opinion, however z. B. Tiedemann , in: BeckOK VwVfG, 28th edition as of July 1, 2015, § 36 Rn. 49.1: In relation to the state, only the rule of law applies
- VG Cologne, judgment of May 10, 2019 - 6 K 693/17 -, nrwe.de.
- Antonius Opilio, Working Commentary on Liechtenstein Property Law, Volume I, EDITION EUROPA Verlag, 2009; Art 2 SR - margin no.2.
- List largely based on Antonius Opilio, Working Commentary on Liechtenstein Property Law, Volume I, EDITION EUROPA Verlag, 2009; Art 2 SR - margin no.3.
- Antonius Opilio, Working Commentary on Liechtenstein Property Law, Volume I, EDITION EUROPA Verlag, 2009; Art 2 SR - margin no.4.
- Antonius Opilio, Working Commentary on Liechtenstein Property Law, Volume I, EDITION EUROPA Verlag, 2009; Art 2 SR - margin no.8.
- Civil Law: Floor Plan and Introduction to Legal Thought, Chapter 11 (PDF; 2.2 MB) , Univ.-Prof. Dr. Heinz Barta, University of Innsbruck, 2004
- Supreme Court: Law Record number RS0017859 , October 7, 1974
- Against: Schlechtriem / Schwenzer, Commentary on the Uniform UN Sales Convention , 6th edition 2013, Art. 8 Rn. 30th
- Schlechtriem / Schroeter, Internationales UN Sales Law , 5th edition 2013, Rn. 101.
- Acquis Group: of the Acquis Principles (German, Chapters 1-8) Text of the Acquis Principles , official translation into German, chap. November 1-8, 2007.