Bona Fides between civil law and common law perspectives: The contractual principle which makes the difference

• Author: Ergysa Ikonomi
• Position: Lecturer at 'Ismail Qemali' University, Vlorë
• Pages: 63-72

63

ISSN 2410-759X

Acces online at www.iipccl.org

Balkan Journal of Interdisciplinary Research

IIPCCL Publishing, Tirana-Albania Vol. 1 No. 3

January 2016

Bona Fides between civil law and common law perspectives: The

contractual principle which makes the difference

PhD (C.) Ergysa Ikonomi

Lecturer at “Ismail Qemali” University, Vlorë

Abstract

The general principles of contractual law are the main pillars which support and inspire

the development of contractual relations. Often they are all well-known and accepted

worldwide, but there is one particular principle which is considered as the one which

“separate” laws and lawyers according to their approaches towards it.

The focus of this paper is Bona Fides, as a Contract Law Principle, an old principle, but not

an old fashioned one. Through a brief description will be treated the evolution of the

notion of good faith, becoming an international principle.

Bona Fides is recognized by domestic contract laws of Civil Law countries, as a duty in

pre- contractual stage, in interpretation and during the performance of the contract.

Although, some Common Law countries have embraced the trend of recognizing Bona

Fides, the English example stands as a “fortress”, constituting the different approach. The

paper will put face to face these two different approaches, analyzing them in order to

find out the presence of Bona Fides Principle and to clarify the need of Bona Fides in contracting.

Keywords: good faith, contract, parties, law, principle.

Introduction

To contract means to interface a widely used action, especially in commercial law.

The contracts form the legal basis of numerous transactions, putting in touch people

all over the world through the rights and obligations they carry. It is not the law,

judicial authorities or other authorities that create a contract. It is a private agreement,

whose content must not be illegal or immoral. Thus, the contracts are highly binding

to be fulfilled. We owe the importance that gets the contract, to the old “pacta sunt

servanda” principle of Roman law. Zimmermann clarifies that “pacta sunt servanda”

is now taken to insinuate honoring the contract’s conditions under all circumstances,

as the parties are bound by their agreement. (Zimmermann, R. 1999, p. 576-577)

The Albanian Civil Code, article 690, undoubtedly expresses what the old principle

means: “Contract, regularly signed, has the force of law for the parties”. So it is reinforced

the idea of contract’s fulfillment through the provision of equity between a private

agreement and a fully applicable legal act, despite the limited action of contract,

generally on the parties.

The contract is the expression that people need to cooperate with each other and to

be sure about the effects to come in the future. It is an agreement that establishes

rights and obligations, typically based on the kind of the contract. But the behavior

conduct by parties during the creation and execution of the contract is traversed by

some important principles. In the entirety of principles, provided not only by our

domestic law, but even by UNIDROIT Principles of International Commercial

Contracts and by Principles of European Contract Law, points out Bona Fides