Functionalism, Co-operation, Good Faith and the Making of the “Daily-Preventive Justice” in Contract Law Theory and Practice.

Abstract

The thoughts and observations contained in this paper were first presented in a preliminary form at the Staff Seminar that I gave at the University of Cape Town (UCT) - Department of Private Law, on Tuesday May 8 2012.  The organizers generously offered me a free choice of subject. Such an offer always poses a problem to imaginative people like myself. I finally chose as my subject the role of good faith in contract law theory and practice and then entitled the Seminar “Good Faith & Contracts - Brothers in Arms”. The aim of the talk was to briefly describe what I see behind the doctrine of good faith (and, more broadly, behind the general course of the parties’ behavior before and after the conclusion of an agreement), to then explain the need of its protection and future reasonable developments by challenging the limitations of both traditional and current legal approaches to contract law theory and practice. By adopting a comparative modus investigandi, it emerged that especially in the area of contract law a new law-finding process is emerging in the European continent and it is leading to re-conceive the meta-national legislative interventions by challenging the limits of Hobbes’s Leviathan. As asserted, we ought to not take this process for granted because although there are many forms of social organization, contract is the most pervasive and the law of contract still is the most important vehicle to support and supplement private arrangements. However, the point of departure for theorizing about private law is based on experience. Consequently, despite the growing emphasis on the convergence of national legal systems in Europe, conducting research on private law theory and practice requires that imagination and creativity be matched with prudence. Proficiency has to be aligned with what we have learned from history.