GOOD FAITH AND THE CONTENTS OF CONTRACTS IN EUROPEAN PRIVATE LAW

In this contribution, first some conclusions from comparative research and legal theory are drawn; next, ‘good faith’ in the Principles of European Contract Law is dealt with. The author does not intend to present to the reader a comparative overview as such, as there are excellent recent publications, such as Good Faith in European Contract Law, edited by Reinhard Zimmermann and Simon Whittaker. At the end of the second part, the author tries to indicate the specific role good faith can play in a multi-level legal system such as the actual or future European contract law.

I. Good faith in our legal systems in general

I.1 Three dimensions and three paradoxes

I.2 Rule of construction versus rule of behaviour: Mechanisms of containment

II. Good faith and the contents of contracts in the Principles of European Contract Law (PECL)

II.1 The notion of good faith and fair dealing

II.2 The contents of contracts under the PECL

II.2.a General contract law and specific contracts

II.2.b How the contents are determined: Sources of content

II.2.b.1 Express terms

II.2.b.2 Rules to determine undetermined terms

II.2.b.3 Default rules on the modalities of performance

II.2.b.4 Statements giving rise to contractual obligations

II.2.b.5 Specific additional remedies in general contract law

II.2.b.6 Other – sources of – implied terms

II.3 Vague norms and multi-level European law

II.3.a The formal/institutional dimension of vague norms in the PECL

II.3.b Vague norms as an instrument to organise sustainable diversity

Notes