The principle of bona fides from Roman law to contemporary law
Embargo Lift Date: 2019-06-08
Şans Uçaryılmaz, Talya
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Fides (fidelity and to honor the word), one of the strictly adopted moral values in the Roman civilization, gained a legal character by being transformed to the concept of bona fides with the applications of Roman procedural law. Bona fides that is evolved by the “ex fide bona” clauses, which were added to iudicia bonae fidei (good faith suits) and provided the legal eslasticity by giving the judge the possibility to condemn the parties to the requirements of good faith, and the exceptio doli (the fraud exception), has expressed the good faith in its subjective and objective sense. The most important medium in which bona fides finds its place, has been the law of contracts. The fundamental criteria of objective bona fides is: Loyalty, honesty and reasonableness. Bona fides, the good faith rule in contemporary contract law, has interpretative; supplementary; corrective and obligation creating functions. The concept of bona fides is the source of many different doctrines such as the prohibition of abuse of rights; the prohibition of the inconsistent behaviour; pacta sunt servanda and clausula rebus sic standibus. The principle of bona fides, is operating like a bridge between different legal systems on account of its amorphous nature and that it is based on moral-ethical values. Bona fides that started to play a massive role in supranational legal texts, is suitable to provide the elasticity to overcome the firmness of national legal rules and the legal dynamism that is required for the globalisation of law.