Good faith as a criterion for integration and correction of the content of the contract. Protection of legitimate expectations in contracts containing general conditions

Abstract

The aim  of this paper is to analyze the role that  good faith plays to develop, complete or correct the content of the contract. The idea that serves as a common thread is that the application of this principle requires clear and precise rules that provide it with content without jeopardizing the principle of private autonomy applicable to contracts. To this purpose, on the one hand, the specific rules that underline a duty of good faith in accordance to Article 1258 CC are specified, based on the case law of the Supreme Court. On the other hand, it is analyzed whether the good faith can be used to correct the unfairness of the contract. Specifically, the role that good faith plays via the notion of “unfair surprise” in contracts containing general conditions is also  subject to revision.  It is concluded that the control of contract terms is only admissible in case of the adherent party is unfairly bound in the course of the contract negotiation process. The legal basis for such conclusion is the rule of reasonable expectations of the parties factored into the good faith principle.