Implementation of the Principle of Good Faith
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Abstract
The article analyses good faith as an objective category. The attempt to reveal its content is based on the provisions of the current Civil Code of Lithuania. The author studies what presumptions related with good faith are established in the current Civil Code ant what are the significant practical provisions for their application. The submitted examples from the court practice show the newest tendencies in the development of a unified court practice in applying the principle of good faith. The author presents the arguments for his understanding of the provisions that define the content of good faith as a person being “aware” or “should have been aware”. The opinion formed on the basis of the legislation in force and the most recent court practice is that practically the operation of the principle of good faith ought to be coordinated with the principles of justice and reasonableness. According to the author, a person in good faith would enjoy full legal protection. In the event of a person’s behaviour being evaluated as a bad faith, the applicable legal measures would become his responsibility, refusal to protect his violated rights or refusal to grant the protection provided for by laws in respect of persons acting in good faith. The author tries to predict what consequences might result from the formation of one or another direction in the court practice.
The author draws a conclusion that bad faith is deemed to be an act that fails to conform to the requirements applicable to diligence, caution, consideration and behaviour that is not in conformity with legal acts (violence, deceit, coercion, fraud), as well as omission, expressed in the failure of a person to fulfil his duty to clarify certain circumstances.
The second conclusion made by the author is related with active or passive behaviour of a person. The notion “should have known” is interpreted as a person’s duty in terms of active behaviour. A person’s omission expressed in a groundlessly unrealised possibility to know about the harmfulness of his acts in respect of other person is regarded by the author as failure to fulfil this duty, therefore attributable to bad faith.
The author draws a conclusion that bad faith is deemed to be an act that fails to conform to the requirements applicable to diligence, caution, consideration and behaviour that is not in conformity with legal acts (violence, deceit, coercion, fraud), as well as omission, expressed in the failure of a person to fulfil his duty to clarify certain circumstances.
The second conclusion made by the author is related with active or passive behaviour of a person. The notion “should have known” is interpreted as a person’s duty in terms of active behaviour. A person’s omission expressed in a groundlessly unrealised possibility to know about the harmfulness of his acts in respect of other person is regarded by the author as failure to fulfil this duty, therefore attributable to bad faith.
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Articles
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Authors retain copyright of their work, with first publication rights granted to the Association for Learning Technology.
Please see Copyright and Licence Agreement for further details.
