November 22, 2012

The duty of good faith in the pre–contractual negotiations.Many different Civil Codes contain elemen

Many different Civil Codes contain elements which establish a général duty of pre-contractual good faith.

The pre-contractual negotiations are often as important as the contract between the parties. During this time, the parties agree on the terms of the contract, which will be legally binding for them.

The good faith is a principle which is essential to the contract. Some Civil Codes refer to it. In the French Code Civil, in the Article 1134 it is written that « Contracts (…) must be performed in good faith » It does not refer especially to pre-contractual negotiations, but french autors do recognize a général duty of good faith in the pre-contractual negotiations.

In German law, the parties enter in a legal relationship just by taking up negotiations. It means that they have duties, as the good faith, even befor the formation of the contract.

The italian Codice civile is probably the most explicit, in the Article 1337 is is written « During the course of the negotiations and in the formation of the contract, the parties must act in good faith ».

The UNIDROIT principles and PECL also accept the notion of good faith.

The good faith is a moral concept, it is very difficult to define it. But in the perspective of the formation of a contract, most legal cultures agree about the importance of this concept. The good faith is a very important élément of legal relationship, especially in cases of contracts of sell for example. If someone wants to buy a house, it is understanble that this person is expecting from the seller, that he really wants to sell it. Then even before they sign the contract, both parties have to be in a Relationship of good faith.

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