Good Faith as a Compromise between Civil Law and Common Law Jurisdictions in the Legislative History of the CISG

Abstract

There is a wide recognition that encompassing an obligation of good faith in every commercial contract is one of the most important advances in contract law in the twentieth century ^[1]. Despite the fact that this concept has been incorporated in the vast majority of national legal systems, its precise scope and application may vary from one to another, depending on the commercial traditions and customs of each legal system ^[2]. The fact that good faith has been treated differently in different national legal systems has also been reflected on the international level through its inclusion in international legal instruments, one of which is the United Nations Convention on Contracts for the International Sale of Goods (hereafter CISG). In this article, the legislative history of the CISG will be closely examined with the purpose of finding out how a compromise was reached between the common law countries, which expressly objected to the imposition of a duty of good faith, and the civil law countries, which explicitly endorse its incorporation. A logical result flowing from this historical examination, as will be submitted, is that the conceptual ambiguity of good faith is the underlying reasoning behind their fundamentally different attitudes towards the incorporation of this notion in the international commercial context.