Faithfully and faith
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In the law of contract, more exactlywithin an obligation, the debtor is obligated after § 242 BGB to cause the achievement in such a way how faithful and faith in consideration of the usage require it. The principle of faithful and faith has its historical origin in bona the fides Roman citizen.Much held Romans its “good loyalty”. Meant thereby like that something was like reliability and integrity in right traffic.
Table of contents
the principle of faithful and faith is accordingly abstract a general clause andseized. For concretizing certain drop's groups were formed. In addition belong for example the prohibition of the misuse of rights and the prohibition venire versus factum proprium. These drop's groups serve above all to catch circumstances those not already from a special legal concretizing of the principle of faithfuland faith to be seized. Such legal concretizing so e.g. are in the German right into §§ the 243ff BGB. the obligation to carry out with an obligation in kind goods of middle kind and quality. The connection between the principle of faithful and faith is particularly descriptive and §241 exp. 2 BGB. Before § 241 exp. 2 BGB in the year 2002 to the BGB, contents of this regulation were taken up alone from faithful and faith were derived (see also pVV).
range of application
in principle is the principle of faithful and faith onlywithin a special connection (thus for instance a contractual relation) applicably, as can 242 BGB be inferred from the wording §. Outside of a special connection the barriers for acting the particular are lower. Like that only such acting is here inadmissible, that after § 226 BGBfor serves which others to harm (chicanery prohibition). Out § it results 826 BGB furthermore that deliberately immoral acting is inadmissible. This demarcation is however often broken through. In many cases the principle of faithful and faith of teachings and iurisdiction becomes also outside of oneSpecial connection applied. An important example formed the figure up to its coding in the BGB culpa in contrahendo.
Nevertheless the principle must be separated from faithful and faith strictly from the above prohibitions (immoral acting and chicanery prohibition). In the appropriate regulations usedTerms seem to mean something similar, them occupy however different places in the juridical system and have accordingly a different content.
Controversies exist over it whether the principle of faithful and faith in particular finds also in the public right and in the administrative proceedings and in the procedural law application. Thus becomesthe general legal protection need as a condition for the validity of one legal proceedings derived from many from faithful and faith.
faith a comparable role plays other legal orders in legal orders, which are related the Germans, even if itself the legal formulations z. T. differentiate.See for example kind. 2 exp. 1 of the Swiss civil code.
- cutter, Konrad: Faithfully and faith in the right of the obligations. Munich 1902. and further writings of the same: Supplement in the ArchBürgR 25, 269; for the communication over the term ofFaithfully and faith, 1905; Faithfully and faith during the civil process, Munich 1903.
- Henle, Rudolf: Faithfully and faith in right traffic. Berlin 1912.
- How/as field, Franz: To right-theoretical specifying § 242 BGB. Tübingen 1956 (right and State of, number 193/194).
- Baumgärtel, Gottfried: Faithfully and faith, good customs and chicanery prohibitionin the realization procedure. ZZP 69 (1956), S. 89-131.
- Rüthers, Bernd: The unlimited interpretation. 6. Aufl., Tübingen 2005.
- Strätz, Hans Wolfgang: Faithfully and faith. I. Contributions and materials for the development of „faithful and faith “in German sources of private law of 13. up to the center 17. Century. Paderborn 1974.
- Zeller,Ernst: Faithfully and faith and misuse of rights prohibition. Zurich 1981.
- Pfister, Bernhard: The newer iurisdiction to faithful and faith in the civil proceedings. Frankfurt/Main and others 1998.
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