On the Significance of bona fides in Contract Law (Part 2)

Abstract

Building on Part One’s comparison of the mechanisms through which different legal systems balance the strictness of a model rule with the corrective devices that enable their rules to operate appropriately, Part Two turns to the relationship between the formal and substantive meanings of bona fides. It argues that good faith performs not only the formal role of tempering strict rules — overcoming their rigidity and adapting them to particular relationships — but also a substantive role as the principal source of such correction. The corrective function is merely the outward manifestation of the primary, norm-creating function of good faith, which sets the limits of freedom. Artificially separating these functions disregards their unity, deprives the law of its systemic character and of the principles that shape and bind it, and renders it meaningless. Against this background, how do contemporary legal traditions differ, and how are those differences connected with the diversity of contract-law theories? What shapes the content of bona fides? Should the required standard of conduct be typified as an average benchmark established in practice? Is it possible to abandon conceptualism and, instead of formulating universally applicable abstract rules derived from a single principle, seek to identify the competing values represented in contemporary society that drives decisionmaking?