On The Good Faith In Common Law

This essay is on the study of good faith,analyzing and reasoning on theory and practice of good faith in field of commercial and civil law.Good faith which is often related with the principle of honesty and credit in China is one of the important principles in common law. Good faith requires the parties to exercise rights and fulfill obligations with honest heart and certain care.It provides the judges some adjustment of the legal precedent of free jurisdiction to balance right and obligation,and to remove the inequity,and to maintain justice.Good faith protects the safety of market;keeps the benefit's balance between parties and also between the party and society.It is designed to satisfy the market's requirement of flexibility, compensating and balance.Good faith requires the parties to exercise right and fulfill obligations with honest heart and certain care.It contains the following part:firstly,good faith asks for a subjective bona fide that the parties should hold a kind motive of contract and recognition of contract and mutual benefit of the contract's purpose;secondly,good faith demands the honesty objective act,including true words at the beginning of signing contract,the teamwork at the process of performance of contracts,the sticking obligation after the performance of contracts;thirdly, good faith calls for the fair,rational outcome,a benefit balance between parties.Good faith runs well in common law,playing an important role in market economy in countries applying common law,such as GB.and America.On the contrary,although the principle of trust and credit is so called as the "king principle" and is written down in the fourth term of civil law,it is seldom used in the practice in the courts.This has to arouse the focusing of academe.The author wants to achieve following aims through out the study of good faith:firstly,the introduction of good faith can bring some attention in academe;on the other hand,we can learn something from good faith to perfect the principle of trust and credit in practice part.The whole essay has three main parts.After the brief introduction of good faith,the first part proceeds with the conception of good faith.In the process of giving a conception to good faith,it is drawn that good faith is not able to definite directly.Then excluder approach of definition has introduced,which set out the cases of bad faith.Furthermore,history of good faith from ancient Roman Law to The Restatement(Second) of Contracts has developed better and better.There are analysis of the influence of good faith from society,economy, culture and religion.The second part of good faith is the static theory study.After the introduction of academic view point,the essay continues to uncover the essence and content of good faith.And then,it turns to the jurisprudence,looking for the theory support for rationality of good faith.A conclusion is made that good faith is the moralized law,effected by religion,especial Christianity.As the law-and-economics scholars said,good faith is to prohibit opportunistic behavior and to improve the efficiency of contracts.The second part of the essay goes further,compared with the first part.The third part is the dynamic part of good faith,outlining some cases and analyzing these cases under the logic of common law.At the same time,the last part of the essay echoes the first part,and also testifies the second part.At the conclusion part,the author compares the principle of good faith with the principle of trust and credit.There is some advice from the author for the principle of trust and credit, combining with the legal system of China.The fourth part basing on the concluding of good faith,compares good faith with trust and credit principle in theory study and legal practice.Combining with the legal system in China,the author gives some advice to improve the trust and credit principle.This essay is mainly from the common law point of view,following the legal logic and thought way of common law system,especially for the conception part and cases part.On the other hand,some abstract conclusion is made at the static theory part.