good faith from the first (substantive) dimension and replace it by a duty to co-operate,
eliminate it from the second (formal) dimension and replace it by a notion of reasonableness
or reasonable expectations, and finally eliminate it from the third (institutional) dimension and
replace it by a mechanism of equity granting large powers to the judges. A number of theories
have been developed where the function of good faith has been restricted to one of these
dimensions (or to the 2 last ones).
Thus, in the tradition of Latin countries, there is often a tendency to restrict the function of
good faith to the first dimension, and the notion to an ethical concept : good faith expresses a
moral rule, more specifically an altruist morality, to the extent that the formal rules of law
permit it. The contents of good faith may be coloured more subjectively, as in a traditional
French view reducing good faith to the absence of bad faith in a subjective sense; they may be
coloured more objectively, as in Demogue’s theory of the contract as a microcosmos, or in art.
1175 of the Italian Civil Code on the regole della correttezza. What seems to be closing up
good faith in the first dimension in reality does not say much about the first dimension, but is
rather a statement in favour of a restrictive use of good faith by the judges, and thus rather a
position in the formal and/or institutional dimension.
On the other side, some authors have developed the theory that good faith has no substantive
meaning at all, that there is no inner coherence between so-called good faith rules, and that any
rule could be based on it. Good faith is in this view merely the sum of all additions and
corrections to the old tradition brought about by judges, whatever their content may be, just
like “equity” in English law consists of the addenda and corrigenda to the old common law,
and the ius honorarium in classical roman law consisted of the addenda and corrigenda created
by the praetor
3
. The only role of a good faith clause in a contract code would therefore
consist of reminding us that judges are creating law. But in a systematic overview of the law,
it should not be a separate subject
4
.
Paradoxically enough, those who only see a formal and/or institutional dimension in good faith
do not say much about precisely this dimension: how is the judge going to use its power
granted under the name of good faith, reasonableness, equity or any similar principle: by
incremental change from precedent to precedent or by trying to give substance to very general
principles ?
3. In favour of the latter theory, it can be said that the justification of a given solution to a
case by good faith, is indeed in most cases limited to solutions, which are not found in the
traditional rules (either the case law tradition or legislation).
3
See for this view eg M. HESSELINK, De redelijkheid en billijkheid in het Europese privaatrecht, Kluwer
Deventer 1999, also summarized as “Chapter 18. Good faith” in A. HARTKAMP et al., Towards a European
Civil Code, second edition 1998, Ars Aequi Libri Nijmegen / Kluwer Law international 's Gravenhage, p. 285
ff.
4
Although not theoretically explicit on this point, a practical application is made by H. KÖTZ, Europäisches
Vertragsrecht, I, Mohr Tübingen 1996, as good faith is not at all a subject in this treatise, but the solutions
based on good faith are widely dealt with. Kötz is not dealing with good faith, but with its practical
applications.