Personal greetings! Our mission today is to bring to you a notion of the importance of one of the most powerful legal principles for practicing law in various branches of law: the “principle of good faith.”
Yes … an old acquaintance of lawyers, students and operators of law, but that is not always applied with mastery.
Perhaps you would stop this reading here, thinking you already handle the principle of good faith and you do not need that content. Please reader friend, never underestimate the knowledge!
Who stands out in the midst of the herd is the one who has the humility to improve every day. Then come with me!
The role of legal principles in practice
As a rule, our first contacts with the general principles of law take place there at the beginning of academic life, amid the enthusiasm of the “introduction to the study of law” classes. In fact, the future professionals who study there do not even know that these classes are among the most powerful in the entire Law Course.
Here we learn that in the life of law the principles serve as the basis for two important functions: in drafting laws and in applying law to concrete cases. In the practical life of the lawyer this second part is the one that interests us the most.
Here I do not intend to exhaust the various theses on the general principles of law, but only draw attention to the power of this tool in the hands of the lawyer.
Rather than having the right of your client come across a gap in the law or conflict between different legal norms or interpretation techniques, knowing how to handle the application of principles with propriety can be the “scribe” to ensure your of your work.
To make clear the power that the principleological application has in the current law and how the way of interpreting certain rights along this path can make all the difference, the chosen was the time was the “principle of good faith.”
The principle of good faith in Brazilian law
With its origins in Roman law, the principle of good faith, strictly speaking, is one of the fundamental principles of Brazilian private law and its primary function is to establish an ethical standard of conduct for the parties in the most diverse obligatory relations.
In other words, in contemporary law there is no way of thinking of a private law contract that is outside the scope of the principle of good faith.
However, it is important to note that in this sphere, the principle of good faith has two facets, “objective good faith” and “subjective good faith.”
Subjective good faith
The latter, the “subjective good faith,” is well known to lawyers and lawyers with more practice time, since it was visibly present in the Civil Code of 1916.
The principle of good faith in this “subjective” view was related to the intention of the subject of law, studied in the analysis of the possessory institutes, for example.
Objective good faith
On the other hand, the “objective good faith” – present in the text of the Civil Code of 2002 – reflects the most relevant meaning of the “principle of good faith” for the practice of current law. This is because this is the facet that directs the conduct of the parties, especially in the negotiations and contractual relations.
In the prevailing civil law, 2, good faith as a principle is consolidated in Article 42, section I of the chapter “General Provisions”, of Title V “Contracts in General”. That is, it becomes valid for any and all type of contract.
In fact, the current Civil Code did nothing more than follow the Roman trend already adopted in our Code of Consumer Protection in its art. 4º III, among other commands, enshrining the principle of good faith as one of the basic parameters to balance the relationship between consumers and suppliers.
In a personal sense, in contemporary private law, the principle of good faith is extremely relevant insofar as it affects any contractual relationship with the requirement of fair conduct between the parties.
In addition, the principle of good faith establishes several duties that do not even need to be written in the legal business. These are the so-called annex rights, such as those cited below:
Duty of care in relation to the other negotiating party;
Duty of respect;
Duty to inform the other party about the content of the business;
Duty to act according to the trust deposited;
Duty of loyalty and probity;
Duty of collaboration or cooperation;
Duty to act with honesty;
Duty to act according to reasonableness, fairness and good reason.
Therefore, what has prevailed in practical life, especially in Civil Law, is that the violation of any of these duties implies an offense against the principle of good faith.
The principle of good faith in branches of
Although the practical application of the principle of good faith is clearer in civil law, this juridical principle has scope throughout the Brazilian legal system.
Even before expressly stated in Brazilian law, the principle of objective good faith had already been widely applied by jurisprudence. Even in several decisions of the Superior Court of Justice, to solve cases in various branches of law.
In the practical life of advocacy and country jurisprudence, it is not difficult to find precedents of the force of the principle of good faith in solving various demands.
To access the News on the source site click on the following link (in Portuguese): https://www.aurum.com.br/blog/principio-da-boa-fe/