Abstract
A mistaken belief in the existence of a right or legal relationship should not be excused if it is the result of even mere negligence. In all those cases, therefore, in which the legislator does not define good (bad) faith, it can be taken equally, in accordance with the previously approved view.
There can be no question of the supremacy of, for example, principles of social coexistence over good morals or customs of fair dealing. Indeed, if the principles of social coexistence have replaced old expressions, such as good morals, for example, it must be assumed that the formerly used terms make up the concept of principles of social coexistence; they are an integral part of those principles, albeit not explicitly expressed nowadays.
The opinion that, in view of the presumption of good faith established in Article 7 of the Civil Code, it is important to establish bad faith, because in the absence of bad faith, the existence of good faith is presumed, does not appear to be accurate. The more convincing view is that good faith must first be presumed by virtue of the presumption established. The legal consequences of acting in bad faith can be determined when it is proven.
When the general concept of good faith is formulated, a specific subsumption of good faith related to a specific situation can be made to the general concept. The essence of good faith remains the same in these cases. Certain modifications, on the other hand, are due to the different facts covered by the hypothesis of a particular norm. In all those cases where the Civil Code uses the expression “good” or “bad faith” without defining these terms, bad faith is excluded by knowledge and any form of negligence.
Taking possession of the property without the required form of a notarial deed implies bad faith on the part of the holder. Good faith cannot salve ignorance of the requirements imposed by mandatory legal provisions as to the specific form of a contract for the transfer of ownership of the property. In this situation, the traditional rule that ignorantia iuris nocet should come to the fore. Disregarding this rule would create opportunities for circumvention and violation of existing rules. Such phenomena must be countered.
The concept of good (bad) faith in the provisions of the Civil Code that use this concept is the same. This thesis is not undermined by disputes over whether good faith is to refer to the belief of the purchaser of the movable property about the source of the seller’s right to dispose of the tangible property (only from the right of ownership or also from other rights). Some differences also result from the fact that good faith arises in a variety of factual situations. However, its essence remains the same. Indeed, in each case it is defined as an erroneous (mistaken), but justified under the circumstances, belief (conviction) in the existence of a particular right or legal relationship.
Formulations: “knew”, “knew or could easily have known”, “knew or, in the exercise of due diligence, could have known” suggest that the subjective element has been given primary importance in assessing a person’s behaviour.
The phrase “knew” indicates that the person being assessed had acquired actual (positive) knowledge of the state of affairs in question. The source of this knowledge seems indifferent; in any case, it must be reliable. Knowledge should be concrete. Conjecture alone is not enough. What is to constitute the subject of knowledge is defined by the legislation using the phrase. By relating the phrase “knew” to the concept of fault, it can be said that in this case intentional fault will be involved.
The phrase “knew or could easily have known” indicates both intentional fault (“knew”) and gross negligence (“could easily have known”). The term “with ease” means that the event in question could have been learned about without hindrance or difficulty with even minimal effort. In the case of the phrase “knew or, in the exercise of reasonable diligence, could have known”, intentional fault comes into play, as well as any form of negligence (“in the exercise of reasonable diligence”).
Article 7 § 2 of the Civil Code could read as follows: “Good faith within the meaning of the provisions of this Code shall be understood to mean an erroneous belief, but justified under the circumstances by the exercise of due diligence, in the existence of a right or a legal relationship, unless a special provision provides otherwise.”.
The principles of social coexistence, replacing the previously functioning concepts, have not become the only evaluative criterion allowing, on the basis of the provisions of the Civil Code, the attribution of good faith in the objective sense. This function is also fulfilled by the social and economic purpose of the law and by custom.
Under the provisions of the Civil Code, good faith in the objective sense remains with a person whose behaviour is irreproachable from the point of view of the principles of social coexistence and the social and economic purpose of law, and sometimes – established customs.
It is to be thought that, in the course of further progress of civil law reform and the amendment of the Civil Code provisions, the concepts in question will be replaced by the well-known criteria adopted in worldwide legislation (e.g. “principles of good faith”, “fair dealing”, “good morals”, “public policy”).
An organ of a legal person will be in good faith in objective terms if its conduct (as a whole) is considered irreproachable in terms of the criteria under consideration.
Unlike good faith in the subjective sense, the Civil Code does not establish a presumption of good faith in the objective sense. Thus, the person claiming good faith in this sense must prove it in accordance with the provision of Article 6 of the Civil Code.
