Marietta Auer


The meaning, function and desirable scope of good faith in contractual performance is one of the most pervasive problems of European as well as American contracto law. Yet, the discussion seems to be locked into a set of inescapable dilemmas which frequently reappear as a typical, but unsatisfactory part of academic contrubutions and judicial opinions; namely, the controversies between na individualist ethics of freedom of contract and the opposing altruist value of interpersonal responsibility, between the danger of judicial arbitrariness and the demand for equitable flexibility, and, finally, between the legitimacy of judicial law making and the insistence on judical restraint. This article attempts to show a pattern behind this structure, consisting of a relatively small set of typical arguments which appear in ordered pairs of diametrical oppositions such as those mentioned above. This suggests that good faith language is much less tailored to context and much more dependent on a preexistent structure of stereotyped arguments than it usually appears in the pratice of legal discourse. This insignt implies a new assessment of the cogency of argument patterns deployed in theoretical and doctrinal statements on good faith.

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ISSN eletrônico: 2359-6880      ISSN impresso: 1677-809X


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