The Function and Role of Good Faith under the Contract for the International Sale of Goods

다국어 초록 (Multilingual Abstract)

The doctrine of good faith in civil law was a broad and comprehensive principle, whichgoverned the relationship of the parties including in the pre-contractual phase. However, thecommon law, except in insurance contracts, had traditionally rejected the doctrine of goodfaith in civil law.
The concept of good faith had been considered as an ethical norm relating to honesty,genuineness, fair dealing and reasonableness. However it may be more ambiguous in relationto a legal notion. Good faith could not be simply defined since it has different meaningsaccording to circumstances concerned. Good faith in commercial transactions exists in mostcountries, but the usefulness of its treatment and the scope of its application differ. Incontract law, good faith has both a subjective sense, which requires honesty, and an objectivesense, which requires compliance with standards of fair dealing.
The observance of good faith under Article 7(1) can be applied to the statement andconduct by the contracting parties through the interpretation of Article 8 and usage agreedupon between the parties under Article 9. Moreover, by the application of Article 7(2) in theCISG, good faith can be properly applied in the pre-contractual stage. Article 7(2) offeredthe interpretative principle as guidance to solve the concerning questions not expressly settledin the CISG. If this provision is applied, the questions relating to the formation of thecontract for which the CISG does not contain any specific provision would be settled by theprinciple of good faith.
The good faith to be observed under Article 7(1) is the good faith standard in internationaltrade. The standard to measure good faith in international transactions would be sought inreasonableness itself that has been reasonably formed to cause the fair dealing. Though good faith and reasonableness are separate norms, they also have a close interrelationship. There are a number of provisions where good faith, within the meaning of the CISG, may be implied as a standard of reasonableness, which is a test to estimate the important provisions in the Convention.

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