Author: Nadia Zayani*
Abstract
It is not a random coincidence that the term good faith is repeated and emphasized in every stage of the contractual process and in every type of contract. It appears like a constant limitation evoked in different versions, but though the good faith serves as an arbiter between contracting parties and provide mainly a protection from potential abuses-where its strength is based on its constancy and firmness– This principle remains incomplete parameter since it is dealing with abstract and intangible notions where it is really hard to check and make an impartial judgment. Nonetheless the freedom of the contract as a primordial pillar in contract law, happened to be bounded in so many cases by the doctrine of good faith which explain why contracting parties express their non-satisfaction towards this principle such as the case in the British law, in the same wavelength some scholars depicted that the good faith is not really defined as a legal rule it is rather conceived “as a form of behaviours, because of its vague aspect which, make it sounds like, a mere general idea. However this is implies that there will be a certain degree of ambiguity which might lead to the fact that ethical standards will likely control people’s interest and restrict largely their freedom which is totally incompatible with the strategy of the liberal system and the open market. In China the doctrine of good faith was deemed as a primordial principle and it has given a large space for interpretation, in order to grant more rooms for the judge to intervene in terms of jurisprudence whenever he estimate that the case arises. It is considered as a fundamental concept of the modern contract law for its elasticity and adaptability, which allows courts sometimes, according to some scholars, to use the doctrine to fill in legislative and doctrinal gaps when necessary, moreover China has embraced the doctrine with enthusiasm, and has adopted it as a principle of civil law in general, and contract law in particular.
Keywords: Good Faith, Contractual Behavior, Serious Restriction, Chinese Contract Law
