Appunti su subjective good faith, Appunti di Diritto

Scarica Appunti su subjective good faith e più Appunti in PDF di Diritto solo su Docsity!  Subjective good faith:  - a person believes something, but what they belive is wrong  - however, this mistake is justifiable, the mistake is not made with negligence  - it's a mistake that a person with ordinary mental capacity could have made   in order to judge if mistake is justifiable or not, you need to refer to a normal person with normal mental capacity   application of SUBJECTIVE GOOD FAITH:  frequent in property law  some European jurisdiction have specific terminology for good faith:  - known as "Gut Glauben" in German Law, whereas objective good faith is known as "Treu und Glauben"  - no specific terms in Italian law (just buona fede)  - known as good faith in the European legal texts   OBJECTIVE GOOD FAITH  standard of conduct: a person who acts respecting certain requirements of fairness  ‒> IT IS A DUTY FOR THE CONTRACTING PARTIES: contracting parties MUST conduct in good faith  - if parties don't act in good faith, there will be legal consequences  it is the conduct of fair dealing during the contractual procedure, starting from the negotiation phase until the end of contract  key-words = standard of conduct  European legal texts refer to objective good faith as "good faith and fair dealing"  Objective good faith is :  1) open-ended norm: what is a conduct in good faith depends on the circumstances of the case  2) it is the gateway through which moral values enter the law  3) objective good faith plays a central role in the ENTIRE LIFE OF THE CONTRACT   SUBJECTIVE OR OBJECTIVE GOOD FAITH?  PICC ⇒ ART. 1.7: Good faith and fair dealing:  (1) Each party must act in accordance with good faith and fair dealing in international trade.  (2) The parties may not exclude or limit this duty  ⇒ PICC finds application in B2B transactions, therefore in international trade  ⇒ it is a MANDATORY PROVISION   PECL ⇒ Art. 1:201: Good faith and fair dealing:  1) Each party must act in accordance with good faith and fair dealing.  2) The parties may not exclude or limit is duty  PECL apply to B2C, C2C and B2B as well; therefore the word "in international trade" are left out (as seen in PICC)   DCFR ⇒ I. Art 1:103: Good faith and fair dealing:  1) A person has a duty to act in accordance with good faith and fair dealing in performing an obligation, in exercising a right to non-performance, or in exercising a right to terminate an obligation or contractual relationship  2) The duty may not be excluded or limited by contract or other judicial act  DCFR wants to specify all the stages in which the fair dealing counts ⇒ central role through the entire life of the contract  PROBLEM ⇒ reader might think that this norm lists all possible application of objective good faith  in par 2): DCFR chooses the passive form to express that objective good faith is a duty   MAIN CONCLUSIONS THAT ARISE FROM EU TEXTS  All the European texts include the principle of good faith in contract law as the BASIS of the regulation  What kind of food faith? Good faith and fair dealing = clearly objective good faith = standard of conduct  all the European texts include good faith with a MANDATORY NATURE ⇒ it cannot be excluded by the parties   Good faith: MAIN APPLICATIONS  1) precontractual phase  2) to break contracts  3) to develop rules on hardship  4) to control general conditions  Breaching of pre-contractual duties leads to:   precontractual liability  compensation for damages ⇒ negative damages, not positive damages  negative damages: all damages suffered because I was involved in a negotiation which ended badly and for the time, opportuinity and money lost  amount of damages depends on the duration of negotiations⇒ the longer contractual negotiation lasts, the more damages you get  FUNCTIONS OF GOOD FAITH:  1) interpretative function:  - tool to interpret the agreements-  - guide principle for interpretation  - used by the parties and the courts   2) supplementing function:  - good faith can fill gaps or add something in the agreement  - good faith can add or supplement duties established by the parties with other duties which are coming from good faith and not expressively written in the contract  - duty to cooperate: good faith principle can be source of duties for the parties  - used by the parties and the courts (e.g. rengeotiation)  - creates supplementary duties (precontractual stage - after the contract was performed);  - A has to build an office building for B and A is unable to proceed with the works because B refuses to apply for a building permit or does not give the information necessary to obtain said permit ‒> SO B violates his duty to cooperate; supplementing function of good faith in action  3) restrictive function:  - tool to restrict the exercise of contractual rights  - it is the strongest fuction, it leads to limiting of contractual rights (good faith can limit or adapt concept of rights and duties)  - limitation of the binding force of contract 