Consideraţii de drept comparat privind conceptele îngemănate de "bună-credinţă" şi "rea-credinţă" în materie contractuală
Considerations of comparative law regarding the related concepts of "good faith" and "bad faith" in the contractual matter

Summary/Abstract: The consideration in relation to the good faith and bad faith in the agreements in the new Civil Code entered into force as at 1 October 2011 shall belong to the European tendency to moralize the contract law. In order for the main regulations of the new Civil Code not to remain a dead letter, it is necessary to explain these concepts in the comparative law, both in the French civil law or in the Canadian law of Quebec, and in farther systems such as the German civil law or the Anglo-Saxon systems of Common Law, and also in academic creations as the UNIDROIT, D.C.F.R. principles or the Principles of the European Contract Law (P.E.C.L.). The de􀏔inition of the concept of “bad faith” in the negotiation and performance of the contracts may start from the bivalent sense consecrated to the complementary concept of “good faith”, which is examined either from the intellectual point of view, as an erroneous faith or legal ignorance of a subjective law or material fact worthy to be protected, or, especially, as a requirement of behaviour in drafting and performing the legal deeds, permitting the morality to insinuate in the contract law. The legislative consecration of certain 􀏔luid concepts such as the good or the bad faith represents actually a true “delegation” of normative powers by the courts. The good and the bad faith are used by these in order to mitigate the rigour of the general rule, like certain concepts such as emergency, force majeure, relationship. The law needs such “safety valves” in order to avoid the excess of a rather detailed or technical regulation, for the purpose of keeping a just balance between the legal truth and the factual reality. The good and the bad faith in contracts have led to disputes regarding their conceptual independence, sometimes one of them being regarded as a simple contradictory phrase of the other, and the good faith is sometimes considered to be a simple lack of bad faith or, on the contrary, the autonomous concept was that of good faith and the bad faith was equal to the lack of good faith.

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