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Search Results
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The implications of the integrating function of good faith with respect to the obligation to deliver in the contract of sale: subversion, restriction and warranty
In light of an obiter dictum issued by the Supreme Court regarding the scope of the seller’s obligation to deliver, this work seeks to determine the legal implications of integrating, through the principle of good faith under Article 1546 of the Civil Code, the obligation to transfer ownership in the contract of sale. The central thesis is that such integration, as proposed by the Court, subverts the general rule concerning the scope of the seller’s obligation, restricts the regime of eviction, and transforms the obligation to deliver into one of warranty.
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GOOD FAITH AS LEGAL NORM
Good faith in Contract Law has the form of a general clause. Its application presupposes a delegation to the judge of a power to determine in particular cases the specific content of the legal duties or the legal effects implied in a contract. In order to carry this task forward, the judge must assess all the circumstances specific to the case in light of the values and purposes to which good faith points at. Its application, therefore, presupposes the exercise of a delegated but strictly directed power, aimed at specifying the meaning of the good faith standard. The need for such a standard stems from the lack of exhaustivity of the norms of Contract Law. Thus, good faith allows alleviating the unsatisfactory results brought forth by a formalistic application of the Law of Contract and also giving due consideration to the changes in economic and social circumstances which were unforeseeable to the legislator. In this sense, good faith fosters a coherent application and a development of Contract Law that is consistent with its foundational goals and values.
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THREE READINGS OF PROCEDURAL GOOD FAITH
Good faith is a key part in the justice. This paper outlines three conceptually different ways to understand the procedural good faith in modern litigation: a strong thesis (to contribute to the justice of the case), a minimal thesis (not to litigate with malice) and a more than minimal thesis (to fulfill with certain duties of collaboration and procedural burdens). Each approach entails dissimilar implications for the parties, third parties and the court itself. This analysis demonstrates that good faith understood as a more than minimal threshold is the one that is best suited to a process where private and public interests must be balanced. To establish the best distribution of the burdens and duties in the litigation is a priority (but not exclusive) task in the procedural literature.
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UNILATERAL POWER TO TERMINATE THE CONTRACT FOR NONPERFORMANCE AND GOOD FAITH
The purpose of this article is to examine two issues. On the one hand, the control to which the unilateral power to terminate the contract for nonperformance must be submitted, as a tool of contractual remedy, in accordance with the parameters of contractual good faith and, on the other hand, accepting that good faith is a tool of assessment of the behavior of the creditor, determine what would be the liability regime applicable in the case that the creditor exercises such power against good faith and causes damage, in its exercise, to the debtor.
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SUPPLEMENTARY FUNCTION OF CONTRACTUAL GOOD FAITH AND DERIVED DUTIES OF CONDUCT. AN ANALYSIS IN THE LIGHT OF MODERN CONTRACT LAW
This article, after identifying and referring to the institutional functions performed by contractual good faith, focus on the supplementary function and the derived duties of conduct. The first part of the work is devoted to the discussion regarding the disadvantages and disadvantages of recognizing a supplementary function to good faith. The second part, bearing in mind the content of various harmonization instruments, presents a non-exhaustive catalog of duties of conduct that could derive from the supplementary function attributed to good faith, making reference to its current or potential recognition in Chile.
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EXPANSION AND LIMITS OF OBJECTIVE GOOD FAITH – WITH REGARD TO THE “PROYECTO DE PRINCIPIOS LATINOAMERICANOS DE DERECHO DE LOS CONTRATOS”
Good faith is a legal concept in ongoing expansion, as the text of theProyecto de Principios Latinoamericanos de Derecho de los Contratos indicates. However, the vague limits of this notion demand caution when applying it. This article describes the main functions fulfilled by good faith in modern legal systems by considering their recent historic evolution, and suggests the limits which should be observed when laying it down in the law and applying it in legal practice, in order to avoid its abuse.