Doctrine of good faith in civil law

Author(s):  Y.V. Brisov, no, no, Russian State University of Justice, Moscow, Russia, ceo@lfcs.pro

Issue:  Volume 45, № 1

Rubric:  Actual Problems of Legal Regulation

Annotation:  The doctrine of good faith is widely spread in Russian Civil Code and other legislative acts of Russian private law. However, a thorough analysis of Russian Civil law shows that good faith is understood and usually applied differently in many different cases. This research shows that doctrines like estoppel in its many forms (venire contra factum proprium); clean hands doctrine (ex dolo malo non oritur action), utmost good faith (uberrima fides) and so on are usually confused with good faith. Civil law also implies precontractual duty of good faith, however it is still staying unclear whether this form of duty is closer to the German concept of culpa in contrahendo or agreement to negotiate as oppose to agreement to agree in the US law. To understand the duty of good faith in all its multiple legal substances this article follows the evolution of good faith doctrine from the roman legal maxims through its development in both Civil law and Common law legal systems. Further the author compares the provisions of Russian Civil law with the existing legal doctrines of Good faith in the UK, the USA, Germany, Italy, France, Switzerland. The aim is to distinguish these doctrines whether they are being applied in Russian Civil law already, or some of the doctrines should only find their way to Russian legislation in the future, some may further be modified. The article also gives an overview of the related doctrines such as reasonableness and equity that are usually being mixed or included within the doctrine of Good faith in Russian Civil law.

Keywords:  good faith, reasonableness, equity, estoppel, utmost good faith, precontractual liability, unconscionability.

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