Le rejet de la bonne foi en droit anglais.
In: Robin-Olivier, S. and Fasquelle, D., eds.
Les échanges entre les droits, l'experience communautaire.
Bruylant, Bruxelles, pp. 307-331.
ISBN 978-2802725411 .
(Full text available)
Abstract in English
Section 1134 of the French Civil Code provides that contracts should be executed in good faith. From this section, good faith has become an independent principle that applies to all contractual relationships particularly consumer contracts. Some authors have even developed a concept of contractual solidarity, fraternity and loyalty based on good faith.
On the opposite, good faith is alien to English law. According to judge Ackner « The concept of a duty to carry on negotiations in good faith is inherently repugnant to the adverserial position of the parties when involved in negotiations […] A duty to negotiate in good faith is as unworkable in practice as it is inherently inconsistent with the position of negotiating party. » The concept, however, has been introduced into English law by the Directive on Unfair Terms implemented by the Unfair Terms in Consumer Contract Regulations 1999.
This article argues that the implementation of the concept of good faith is superficial. The term was introduced into English law but the concept underlying it (solidarity) has not been transplanted. The rejection of the concept is shown by the Law commission’s proposal of February 2005 (Unfair Terms in Contracts) which excludes good faith for the English concepts of fairness and reasonableness. Furthermore, the case of Director General of fair trading v. First National Bank plc shows that good faith in the sense of reasonableness, as interpreted by the House of Lords has a different meaning than solidarity. Reasonableness is different from good faith in the sense that a term used by 30 credit institutions becomes reasonable even though it is contrary to good faith.
This article argues, then, that the reasons of the unsuccessful transplant are found in the objective and individualistic definition of the contract; the socio-economic context of English society which is more liberal than the French one; and finally, the structure of the judiciary which is more conservative and less likely to develop a solidary conception of contract (as opposed to an individualistic one).
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