The good faith in the formation of contracts

Abstract

The present work was made for the Louisiana Journeys of the Henri Capitant Association in 1992, in answer to a questionnaire previously distributed. The use of the notion of good faith in Brazilian Law is done mainly through he so called subjective good faith. The principle of good faith is not formulated as a general rule in Brazilian law. Subjective good faith, though, appears in many specific sections of the Civil Code. The change in mode of thought appears in the recent Consumer Protection Code (Law n. 8.078, of 1990) with the clear introduction of the objective good faith as a rule of behavior. The consequences of the lack of good faith in the formation of the contract when it is not concluded as a consequence of a rupture in the dealings, only exist in the Brazilian law when it is possible to speak in deceitfulness or fault. Examination of the situations in wich the contract is concluded but voidable by defect and of the cases in which the deceitfulness or the coercion are not determinants of the business. The tangible content of the so called liability of good faith in the contractual formation phase. There are, in Brazilian Law, specific rules about the duty to inform, but not, about the duty of confidentiality and about how to act during negotiations. The sanctions in the event of the contract not being concluded, in the event of being concluded but soon after made void due to defect of formation and in the event of being concluded and maintained, in spite of the existence of defect. The question of the offer that is binding in Brazilian law and the modification introduced with the Consumer Protection Code. The pre-contract in Brazilian law and its great recurrence in situations of sale of real estate. The superior courts and the question of good faith. Final considerations about the principle of objective good faith and how it should be considered by the judge in the contract formation phase. Suggestion of a principle of equitative distribution of losses for cases of damage that do not fit in adequately in contractual responsability, in the extra contractual or Aquilian.