Rezensionen

Béatrice Jazulot, La bonne foi dans les contrats: étude comparative de droit français, allemand et japonais. Verlag Dalloz (Nouvelle Bibliothèque de Thèses) (Paris 2001). X +605 pp. 320 F, ISBN 3-247-04375-5

 

Why is a New Zealander who has migrated to Australia reviewing a book which compares good faith in contract law in France, Germany and Japan? One thread linking all these jurisdictions, with the increasingly bizarre exception of Japan, is that they have acceded to the United Nations Convention on Contracts for the International Sales of Goods (“CISG”). As the author notes at the outset (paras 8, 10-13), as one reason for embarking on her comparative analysis, article 7 (1) of CISG requires it to be inter­preted in the light of good faith, but what this means is still open to debate. Commentators from the English law tradition tend to limit its scope of application, influenced by an enduring reluctance to recognise a generalised duty of good faith governing formation and performance of contracts. German commentators often advocate a broader application, unsurprisingly in view of the ways in which Treu und Glauben expanded rapidly to fill many perceived voids in the BGB, although the German skill – sometimes, mania – for systemization goes some way towards breaking down this general clause into more manageable and predictable principles. The Code Civil of 1805 made little mention of a broad principle of good faith, and French contract law has maintained a comparatively restrictive attitude.

In the first part of the book, after a historical perspective on the doctrine of good faith dating back to Roman law, the author shows this to be so even regarding perform­ance of contracts (paras 695-785). The restrictive approach of French law is particularly notable in the reluctance to develop good faith as a contract interpretation rule in­dependent of the parties’ intentions (paras 468-474, 587-594). A sharp contrast is drawn with German law, seen to have “generalised” the principle of good faith to general new rules for a myriad of situations. Japanese law has been more restrained, with judges perceived as having focused closely on facts rather than evolving new legal rules when applying good faith. They have generated acceptable results in particular cases, but not permitted elaboration of the content of the good faith principle (para 885). This spectrum also characterises the case law analysed exhaustively in the latter half of the book, bringing in a related debate about “contractual justice”. Interest in a general duty of good faith or similar notions under French law has only made headway since the 1980s (para 906). Wanton application of Treu und Glauben is seen to have led to “con­temporary German law being the European system most distant from positivist legal certainty, in the sometimes desperate search for substantive justice” (para 913, quoting Broggini, reviewer’s translation from author’s French translation). Since the 1960s, Japanese courts have proceeded “in a relatively measured fashion: judgments are