Good Faith in European Contract Law
Art.1:201 of the Principles of European Contract Law contains the following provision: “Each party must act in accordance with good faith and fair dealing.” Here the authors of the Principles seemingly had in mind the famed provision §242 of the German Civil Code (Bürgerliches Gesetzbuch). At the same time, one sees here the doctrinal connection to Roman law particularly clear. Namely, the absence of fraud - bona fides – to which an action based in contract expressly referred, is counted as one of the most important forces in the development of Roman contract law and one whose inherent dynamic also shaped the development of German Gemeinen Rechts. In this regard, it has been not only German law but nearly all European codifications that have adopted the principle of good faith. Simultaneously, herein supposedly lays a cardinal difference between continental European law and English common law. English jurists often recoil in horror from such blanket pronouncements as “an invitation to judges to abandon the duty of legally reasoned decisions and to produce an analytical incantation of personal values.” But how substantial are these so often and so emphatically emphasized differences in reality? This question offers the basis for the first study in the context of the “Common Core of European Private Law” project. The core of the work comprises thirty illustrative case groupings that have been selected by fourteen legal scholars in accordance with the national law from each of their respective West-European legal systems. The case studies were compiled by:Ismene Adroulidakis-Dimitriadis (Athens)
Kate Bennet und Joseph M. Thomson (Glasgow)
Angel Carrasco Perera (Castile - La Mancha)
Michele Graziadei (Turin)
Viggo Hagström (Oslo)
Torgny Håstad (Stockholm)
Hannu Tapani Klami (Helsinki)
Helmut Koziol und Klaus Vogel (Vienna)
Horatia Muir-Watt und Ruth Sefton-Green (Paris)
Declan Murphy und Diarmuid Rossa Phelan (Dublin)
Matthias E. Storme (Gent)
J. H. M. van Erp (Maastricht)
Simon Whittaker (Oxford)
Reinhard Zimmermann und Dirk A. Verse (Hamburg)
A comparative law analysis by Simon Whitaker and Reinhard Zimmermann is found at the end of each case study; moreover, an extensive comparative law analysis of the entire project, also by Simon Whitaker and Reinhard Zimmermann, is located at the end of the volume under the title “Coming to Terms with Good Faith”. The volume has been published as part of the Cambridge Studies in International and Comparative Law: Reinhard Zimmerman, Simon Whitaker (eds.), Good Faith in European Contract Law, Cambridge University Press, 2000. In addition to the thirty case studies and the concluding comparative law analysis, the publication also contains the following supplemental contributions:
Simon Whittaker (Oxford) and Reinhard Zimmerman (Regensburg): Good faith in European contract law: surveying the legal landscape
Martin Josef Schermaier (Münster): Bona fides in Roman contract law
James Gordley (Berkeley): Good faith in contract law in the medieval ius commune
Robert S. Summers (Ithaca): The conceptualisation of good faith in American contract law: a general account
The volume was prepared during a symposium in Regensburg featuring all of the contributors and in the course of an extended stay by Professor Whitaker in Regensburg in the summer semester 1997.