The principle of good faith has been one of the most relevant general principles of the Continental European legal tradition. Emerging from the Roman law, good faith has gained a very important role in the general theory of contracts. Both legal traditions, Civil Law and Common Law have adopted this principle as a duty in which parties to a contract must perform their obligations. However, with regard to its application to concrete cases, both legal systems have articulated their own theories and analysis of this principle.
For the purpose of analyzing these different, and sometimes similar, approaches to the principle of good faith, I will begin by providing a general ...view middle of the document...
Having provided the definition of good faith, it is pertinent to analyze it within the two predominant legal cultures: Common Law and Civil Law, but before doing it so, I will briefly introduce both legal systems and establish the main conceptual distinctions between them.
III. Civil Law and Common Law - General Notions
Civil Law and Common Law are the two major legal traditions followed by most nations around the world. Although conceptual distinctions between them are noteworthy, a careful analysis sometimes reveals striking similarities. One of the aspects in which they may seem alike is in the conceptualization and the application of the principal of good faith in contract law. However, before delving into it, it is necessary to provide general notions of both legal systems and point out their major differences.
Civil Law emerged from the European Continent, its roots are found in ancient Roman law, German law and Canon law. Its main feature is that its core principles are codified, serving as the primary source of law. The two main examples of this codification process during the nineteenth and the twentieth centuries were France, with the Code Civil des Francais of 1804, also know as the Code Napoleon; and Germany, with the Burgerliches Gesetzbuch of 1900. Both codes were composed of several books containing the general principles of law, contracts, family law, torts, etc. This codification method was adopted by different countries of the Continental Europe, almost every country of Latin America, some African countries and some Southeast Asian countries as well.
One of the main characteristics of Civil Law is that Civil Law judges’ main task is to apply and interpret the law, arising either from a code or statute, in order to reach a resolution for each particular case. Civil Law trials and procedures are based in an inquisitorial system, which is a...