What are the seller/manufacturer's warranties for material defects in the thing sold?
The discipline of the warranty for material (and not legal) defects is regulated in arts. 1490 et seq. of the Civil Code. Specifically, it is subdivided as follows: arts. 1490-1496 regulate the warranty for defects of the thing, while art. 1497 of the Civil Code regulates the warranty for lack of quality.
Italian jurisprudence has developed, alongside these guarantees, a further one known as 'aliud pro alio", which occurs whenever the material defect of the thing sold is so serious as to render the good completely incapable of performing the function for which it was purchased.
As far as possible, given the complexity and articulation of the issue, an attempt is made below to distinguish the various disciplines of guarantees known to the Italian legal system.
(a) Warranty for defects (Arts. 1490-1496 Civil Code)
This warranty is owed by the seller only if at the time of the conclusion of the contract the buyer was unaware of the existence of the defects, or if such ignorance is not culpable, since the defects were not readily recognisable (Art. 1491 of the Civil Code).[1]
As to its content, it confers on the buyer the possibility of acting to request, at his discretion, the termination of the contract or the reduction of the price (Art. 1492 Civil Code), in addition in any event to compensation (Art. 1494 Civil Code). Excluded from this guarantee is, on the other hand, an action for exact performance, i.e. an action whereby the seller is requested to eliminate defects by repairing the goods sold.[2]
It is important to emphasise that the choice between an action for reduction of price and an action for termination of the contract is irrevocable once it has been made by a court application (Art. 1492(2) of the Civil Code), since a party may not even bring an action requesting the reduction of the price as a subordinate claim to the application for termination of the contract, or vice versa.[3]
Finally, the parties are entitled to exclude this warranty for defects, with the only limitation being the case where the defects are concealed in bad faith by the seller. Particular attention must be given to warranty disclaimers (the discussion of which alone would require a much more extensive study), which fall under the special rules of Art. 1341 of the Civil Code,[4] which regulates so-called 'unfair terms' and provides for the obligation to expressly sign the clause with a double signature, failing which the clause is null and void.[5]
(b) Guarantees for lack of quality pursuant to Article 1497 of the Civil Code.
Whereas defect consists in an imperfection/defect of the good, lack of quality occurs whenever the thing (even though it has no manufacturing/forming/preservation defects) is ascribable to one species rather than another, even within the same genus.[6]
The discipline of this warranty is particular, since on the one hand Art. 1497 para. 1 of the Civil Code makes it subject to the terms of complaint and prescription provided for in Art. 1495 of the Civil Code (and which will be dealt with in section X below), but on the other hand it differs from them, since Art. 1497 para. 2 of the Civil Code provides that termination of the contract is allowed ".according to the general provisions on termination for non-performance".
Although case law over time has always been oscillating as to whether the presence of defects and the lack of quality should be subject to the same discipline or not,[7] the most recent judgments, seem to hold that the action under Art. 1497 of the Civil Code differs from the action under warranty for defects in that in the former:
- the buyer may exercise an action for exact performance (pursuant to Art. 1453 of the Civil Code);
- the buyer could not claim a reduction of the price, as this is not provided for by the general rules on non-performance.[8]
(c) Aliud pro alio
One has aliud pro aliowhen the thing sold belongs to a kind entirely different from that of the thing delivered, or has defects that prevent it from performing its natural function or the concrete function assumed by the parties to be essential.[9] Consider, for example, the transfer of a work of art falsely attributed to an artist. This hypothesis entitles the buyer to request termination of the contract for non-performance by the seller, pursuant to Art. 1453;[10] or to the sale of houses that are uninhabitable or otherwise lack the habitability requirements (C. 8880/2000) or of cars with forged chassis numbers (C. 7561/2006).
In case of aliud pro aliothe buyer is not subject to any duty to give notice, but has the possibility of either demanding performance or bringing an action for termination, and according to Art. 1453 the seller will be liable only if at fault, in accordance with the general principles governing non-performance and, therefore, subject to the ordinary limitation period of ten years.[11]
(d) Damages
In the case of material defects of the thing, the buyer is entitled not only to claim termination of the contract or reduction of the price, but also compensation for damages. Art. 1494 of the Civil Code also provides for a presumption of fault on the part of the seller, who is required to prove that he was blamelessly unaware of the existence of the defects of the thing.
Consistent case law holds that the purchaser must be placed in the economic situation equivalent to that in which he would have found himself if the thing had been free from defects, but not that in which he would have found himself if he had not concluded the contract or if he had concluded it at a lower price.[12] Moreover, the purchaser may also claim compensation for the expenses incurred in remedying the defects, irrespective of the actual elimination of the defects.[13]
e) Application of the Vienna Convention and the Consumer Code
It should be noted that the distinction between defects, lack of quality, defective functioning, aliud pro alio and ordinary liability has been superseded by the Vienna Convention, which provides, in Articles 35-41, homogeneous means of protection of the buyer for all hypotheses of non-conformity of the thing delivered with respect to the thing agreed upon.
Art. 35 lays down two criteria for assessing whether the goods delivered are free from defects, firstly that of conformity with what was agreed upon between the parties and, in the event that such an agreement is lacking, a series of subsidiary criteria.[14]
As to the remedies offered by the Convention, they are: the request for fulfilment (Art. 46)[15]termination of the contract (Art. 47),[16] price reduction (Art. 50)[17] and damages (Art. 45).[18]
Directive No. 1999/44/EC of 25.5.1999, implemented by Legislative Decree No. 24 of 2.2.2002 (which introduced Articles 1519 bis-1519 novies into the Civil Code) and relating to the sale of consumer goods, moved in the same direction. The new discipline provides, at the professional seller's expense, a unitary guarantee for all hypotheses of 'lack of conformity' of the goods with the contract, legitimising the consumer to request, at his choice, the repair of the goods or the termination of the contract.
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[1] Recognition of the defect is excluded if the sale was concluded at a distance, i.e. if the goods were packaged or packaged
[2] This exemption applies, of course, to sales between professionals, since the new consumer code, which was introduced in Italy with the transposition of Directive 25.5.1999, no. 1999/44/EC, implemented by Legislative Decree 2.2.2002, no. 24.
[3] Cass. Civ. 2015, no. 17138; Cass. Civ. 2004, no. 1434.
[4] Article 1341. "General terms and conditions prepared by one of the parties are effective vis-à-vis the other, if at the time of the conclusion of the contract the latter knew or ought to have known of them using ordinary diligence (1370, 2211).
In any event, conditions which establish, in favour of the one who has prepared them, limitations of liability, (1229), the right to withdraw from the contract (1373) or to suspend its performance, or which establish in favour of the other contracting party forfeitures (2964 et seq, or sanction forfeitures (2964 et seq.), limitations on the ability to raise objections (1462), restrictions on freedom of contract in relations with third parties (1379, 2557, 2596), tacit extension or renewal of the contract, arbitration clauses (Code of Civil Procedure 808) or arbitration clauses (Cod. Civil Procedure Code 808) or exceptions (Civil Procedure Code 6) to the jurisdiction of the courts'.
[5] According to authoritative doctrine (Bortolotti F. ''Manuale di diritto commerciale internazionale'' vol. II L.E.G.O. Spa, 2010; Ferrari F. ''General Conditions of Contract in Contracts for the International Sale of Goods'' in Obb. e Contr., 2007, 4, 308; Bonell M.J. ''Le condizioni generali in uso nel commercio internazionale e la loro valutazione sul piano transnazionale'' in ''Le condizioni generali di contratto'' edited by Bianca M., Milan, 1981) and jurisprudence (Civil Cassation 2007, no. 1126) maintain that the double signature requirement of Art. 1341 of the Civil Code cannot be invoked and is therefore derogated from in the event of the application of the Vienna Convention. Contra minority doctrine (Pischedda P. "The evolution of export credit insurance" IPSOA, 2007).
[6] With reference to the qualities that the goods bought and sold must have, this is determined in the Italian guidelines, by the criterion of 'average quality', which operates (exclusively) in the sale of general goods. This criterion requires that the individual qualities exist to that ordinary extent which gives the goods an average value (Art. 1178 of the Civil Code).
[7] Cass. Civ. 1978 nr. 5361; Cass. Civ. 1978 nr. 206.
[8] Cass. Civ. 2000, no. 639.
[9] On the subject of the distinction between vice and aluid pro alio, the Supreme Court of Cassation recently intervened stating that there is a redhibitory vice or lack of essential qualities of the thing delivered if it presents imperfections that make it unsuitable for the use for which it should be intended or significantly diminish its value, or if it belongs to a different type or species other than that agreed upon; on the other hand, there is a delivery of aliud pro alio, which gives rise to the contractual action for termination or performance pursuant to Art. 1453, freed from the terms of forfeiture and prescription, where the goods delivered are completely different from those agreed upon, inasmuch as belonging to a different kind, they prove to be functionally wholly incapable of fulfilling the economic-social purpose of the res promised and, therefore, of providing the required utility. C. 5202/2007; C. 686/2006; C. 14586/2004; C. 18757/2004; C. 13925/2002; C. 5153/2002; C. 2659/2001; C. 10188/2000; C. 2712/1999; C. 4899/1998; C. 1038/1998; C. 844/1997; C. 244/1997; C. 5963/1996; C. 593/1995; C. 8537/1994; C. 1866/1992; C. 13268/1991; A. Rome 29.5.2008.
[10] Cass. Civ. 2008 nr. 17995.
[11] Cass. Civ. 2016, no. 2313.
[12] Cass. Civ. 2000, no. 7718; Cass. Civ. 1995, no. 1153.
[13] Cass. Civ. 1990, no. 8336.
[14] Art. 35 second paragraph 'Unless the parties agree otherwise, goods are in conformity with the contract only if: (a) they are fit for the purposes for which goods of the same kind would ordinarily be used; (b) they are fit for any special purpose expressly or impliedly brought to the knowledge of the seller at the time of the conclusion of the contract, unless it appears from the circumstances that the buyer did not rely on the seller's skill or judgement or that it was unreasonable for the seller to do so (c) possess the qualities of goods which the seller has presented to the buyer as a sample or model; (d) are packaged or packaged according to the usual criteria for goods of the same kind, or, in the absence of a usual criterion, in a manner suitable to preserve and protect them."
[15] Action available, provided that it has not resorted to an incompatible remedy. It may also require replacement of the goods if there is a fundamental non-performance under Art. 25. Reparation may be claimed instead where it does not appear unreasonable having regard to all the circumstances. See on this point Bortolotti, Il contratto di vendita internazionale, CEDAM, 2012, p. 260.
[16] Termination of the contract and consequent return of the services rendered may only be required in the event of essential non-performance or in the event of non-delivery of the goods within a reasonable additional period set by the purchaser pursuant to Art. 47.
[17] Such a claim may not be advanced if the seller remedies the defect or if the buyer rejects the seller's performance.
[18] The harm consists of the loss sustained by reason of the non-performance and the loss of profit. In any event, the recoverable harm cannot exceed the loss which the seller had foreseen or ought to have foreseen at the time of the conclusion of the contract (Art. 74), the buyer having in any event to take reasonable steps to limit the harm, the non-performing party being entitled to reduce the amount of damages by the amount of the loss which it could have avoided (Art. 77).
Supreme Court: abuse of rights also in tax matters.
[:it]For the Court of Cassation, abuse of rights is also possible in tax matters.
The recent judgments 3242/2013 and 4901/2013 reconfirmed that theinstitution of abuse of rights is also applicable in tax matters.
In order to fully understand the dictate, it is first necessary to understand the concept of abuse of rights, being careful to apply a clear distinction between tax evasion and abuse and avoidance.
Unlike other European countries, such as, for example, Germany, Greece, Switzerland and Portugal, Italy has not transposed the principle of abuse of rights as a rule of law. However, at civil law level, doctrine and jurisprudence have developed this widely. An excellent definition was given by the Supreme Court, which provided that "abuse of rights occurs when the holder of a subjective right, even in the absence of formal prohibitions, exercises it in a manner that is unnecessary and disrespectful of the duty of fairness and good faith, causing a disproportionate and unjustified sacrifice of the other contracting party, and in order to achieve results that are different and additional to those for which those powers or faculties were granted"(Cass. Civ. 2009/20106).
In the tax field, the figure of abuse was introduced, Indeed, in its judgment No. 10981 of 13 May 2009, the Court of Cassation, Civil Tax Section, stated that "the prohibition of abuse of rights translates into a general anti-avoidance principle, which precludes the taxpayer from obtaining tax advantages obtained through the distorted use, even if not in conflict with any specific provision, of legal instruments capable of obtaining a tax benefit or saving, in the absence of economically appreciable reasons justifying the transaction, other than the mere expectation of those benefits."
In essence, the concept of abuse of tax law has been a de facto broadening of the concept of avoidance,limited (erroneously) to case studies (Article 37-bis of Presidential Decree 600/1973).
The recent judgments under review, have reaffirmed the applicability of the institution of abuse also in the tax field. Specifically, they ruled that when a taxpayer, exercising a right expressly recognised to him, does not in reality pursue an end worthy of protection by the system, but, on the contrary, achieves an objective that is contrary to it, no judicial protection can be granted to him. In fact, the person abuses the freedom to adopt a certain treatment for his own benefit by exploiting the variety of legal forms that the legal system makes available to him.
Therefore, as opposed to evasion, which occurs when there is a concealment of taxable wealth i.e. the alteration of an economic fact (such as simulation, fictitious interposition), abuse and avoidance, on the contrary, occur when the taxpayer's tax advantage is undue, since it is obtained by exceeding (or abusing) the advantage expressly recognised by a rule, by pursuing an advantage disapproved by the system.
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Supreme Court: bank not obliged to give notice of protest
[:it]According to a rather recent Supreme Court ruling, 12.2.2013 n. 3286, the bank is not obliged to warn the customer prior to the protest of a cheque issued for lack of funds.In the case under analysis, the Supreme Court rejected the ruling of the appeal instance, brought by a bank, wrongly ordered to pay damages to the account holder.
In this case, the Court of Appeal held that a legitimate interest, on the part of the account holder, cannot be detected in the legitimate expectation to be informed of the sending of a cheque for the raising of the protest. Specifically, they pointed out that such an expectation is not protected by our legal system, since its object is a mere factual interest, not at all comparable to a legitimate interest. The Court, on this point, contested the Court of Appeal's reference to the decision of the United Sections No. 500, of 22.7.1999.
It is recalled, briefly, that this last judgment stated that damage may be compensated pursuant to Article 2043 of the Civil Code.only if it concerns "an interest of relevance to the legal system; be it an interest undifferentiatedly protected in the form of a subjective right (absolute or relative) or in the form of a legitimate interest or other interest that is legally relevant and therefore not attributable to mere factual interest."In conclusion, the judgement points out that the damaging event resulting from a protest cannot be attributable to the conduct of the bank, but only to the account holder. The latter, in fact, is always aware of the state of his current account, and for this reason, any protest for lack of funds will be attributable solely to him, since he has no right to prior notice from the bank.
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The use of CEM in the context of third-party enforcement
[:en]As from 1 January, it is mandatory for the enforcement creditor to indicate the certified mail address in the attachment deed.
Starting from 1 January 2013apply to foreclosures against third parties The amendments to the Code of Civil Procedure introduced by Article 1, Paragraph 20 of Law No. 228 of 24 December 2012 in Official Gazette No. 302 of 29 December 2012.
Specifically, the reform provides that the claimant creditor must indicate the certified mail address(a.k.a. PEC), in the attachment deed (Art. 543 of the Code of Civil Procedure) and, moreover, the indication that the third-party creditor may also make the declaration pursuant to Art. 547 of the Code of Civil Procedure by means of PEC.
It should be recalled, briefly, that already with the amendments adopted by Law 52/2006, the third party was allowed, in cases of non-employment claims, to make the declaration also by registered mail. With the reform, therefore, the third party may decide to make said declaration by certified mail, thus avoiding costs and complications.
It is perhaps worth emphasising that the garnishee third partycalled upon to declare, if in possession of things of the enforceable debtor or if it is owed money by the latter, it does not assume the capacity of a party in the enforcement proceedings, whereas, in the event of a failed, negative or contested declaration, it becomes a defendant in any action to be brought to ascertain its obligation towards the debtor. The legislature also amended arts. 548 and 549 of the Code of Civil Procedure. It is stated in the new text of Art. 548 of the Code of Civil Procedure that, in the case of work credits (545 para. 3 and 4 CCP), the third party's failure to make a statement or to appear at the hearing set by the creditor is equivalent to non-contestation of the claim. Indeed, for claims other than labour claims, the new paragraph 2 of Section 548 of the Code of Civil Procedure provides that if the aggrieved party declares that it has not received any statement from the third party and, in addition, the third party does not appear at the hearing set by the aggrieved party, the court shall fix a new hearing by order, to be notified to the third party; if the third party does not appear at this second hearing either, the claim is considered uncontested. Finally, the new Section 549 of the Code of Civil Procedure provides that if objections to the third party's statement arise, they are resolved by the court by order based on appropriate findings. The order is, in the event, contestable pursuant to Art. 617 Code of Civil Procedure.
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[:it]The denied transport of disabled persons. The Marche Regional Administrative Court recognises the moral damage[:]
[:it]The Marche Regional Administrative Court recognised the moral damage to the family of a disabled girl who had been denied the school transport service.
On 11.1.2013, the TAR Marche, with the Judgment No. 32/2013on the subject of existential damage, clarifying certain aspects relating to the configurability and quantification of damage in the case of denied transport of disabled personby the P.A.
The present case, indeed, saw a handicapped girl, which was deniedfor a certain period of time, the school transport service by the Municipality of Cartoceto.
The Regional Administrative Court (TAR) upheld the family's appeal against the municipality, which had not only failed to act on the parents' requests, but had only maintained an unjustified silence.
Specifically, the TAR notes that the damage suffered by the family was, in fact, derived from the unjustified delay with which the municipality took action in order to guarantee the operation of the service to the disabled person. The compensation due under Article 2-bis of Law No 241/1990 took the form of 'apparatus fault' dhe municipality.
Regarding, on the other hand, the existence of a nexus of causality between the inefficiency and the damage to family membersthe Judge recognised a prejudice of a moral and psychological nature, caused to the parent of a disabled child, who is denied a legally required care service solely for bureaucratic reasons, the family itself having to make up for the inefficiency.
Lastly, the Regional Administrative Court rejected the plaintiff's claims for compensation for existential damage, given the brevity and transience of the damage caused and the absence of any evidence of a deterioration in school performance due to repeated absences.
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Evading entrepreneur acquitted by court: the P.A. had not paid him.
[:it]For the Milanese Gip if the PA does not pay its debts to suppliers, it cannot claim that they are convicted of evasion.
Can an entrepreneur who evades taxes be considered guilty if the state does not pay his debts? This question was answered by a recent ruling of the Court of Milanwhich found itself deciding on a case of strong socio-economic interest. Specifically, the managing director of a Milanese company, Sintea Plustek of Assago, had been supplying three ASLs and a hospital in Campania since 2005 with products for a total amount of EUR 1.7 million. However, these supplies were not paid by the PA. Despite the default from the PA, the company still owed the tax authorities approximately EUR 180,000 in VAT for invoices issued. For this reason, criminal proceedings were initiated against the company's legal representative for tax evasion.
The Milan Judge, Claudio Castelli, decided the acquittal of the defendant since these, as stated in the grounds of the judgment, 'was forced not to pay by an omissive and dilatory behaviour on the part of public bodies that should have paid. "
This judgment is of particular interest since the Court wanted to protect not so much the right of the individual entrepreneur, but of a (now large) category of Italian companies often reduced to collapse due to state failures. It is recalled, most recently, a similar case involving the legal representative of the recovery community for drug addicts 'Saman'. In the case in question, the community boasted, in 2009, receivables from the Asl of two and a half million euro, and debts to the tax authorities of one million 750 thousand euro. The Gip had at the time acquitted the defendant on the grounds that the non-payment to the Treasury was to be considered a 'case of force majeure', as no malicious intent on the part of the administrator could be found.
Lastly, it is important to emphasise that the acquittals in the two criminal trials do not disregard the companies' obligation to pay the taxes due, the amount of which had been quantified in the parallel tax proceedings.
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[:en]CJEU: cancelled flight? Obligation to assist passengers.
[:en]The Court of Justicewith the judgment of 31 January 2013 in Case C-12/11, expresses itself once again on the issue of compensation for damage caused by delays and inconveniences to airline flights.
It is recalled, briefly, that with the Judgment of 23 October 2012, No. 629/10the Court held that, in the case of a passenger disembarking with a delay of three hours after the scheduled timethe parameters of damages dictated by EC Regulation No. 261/2004 apply. flat-rate compensation of between 250 and 600 eurosin the event of flight cancellation.
The judgment of 23 October also specified that compensation cannot be claimed if the air carrier proves that the delay was caused by extraordinary circumstances, which could not have been avoided even if all reasonable measures had been taken, i.e. circumstances beyond the air carrier's actual control.
In the judgment under review, the Court of Justice specifies on this point that, even in the event of force majeure, companies are not exempt from theobligation to provide assistance to stranded passengers. Therefore, even if the flight is cancelled due to exceptional circumstances such as the closure of the airspace - in this case the eruption of the Icelandic volcano Eyjafjallajökull - the carrier is still obliged to assist passengers without any time or money limitations by providing them with accommodation, meals and refreshments.
Moreover, the Court emphasises that, when the air carrier has not fulfilled its obligation to provide assistance to the passenger, the latter may obtain, only the reimbursement of such sums as are necessary, appropriate and reasonable.
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Late Disciplinary Notice? Reintegration of the worker.
[:en]The Court of Cassation, with the recent Judgment No. 1693 of 24.1.2013 affirmed a rather relevant principle of law in the field of labour law. Specifically, it stated that in the case of disciplinary dismissal for just causeinfringements must be contested by the employer in the immediacyof their commission.
La failure to contest was, therefore, considered by the Supreme Court as a "tolerated behaviour'. Indeed, the aforementioned Article 7 of the Workers' Statute explicitly states that: "the employer may not take any disciplinary measure against the employee without having first notified him of the charge and without having heard his defence".
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Mum, the plane is late!
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What happens if the plane lands with a significant delay? Is the passenger in any way entitled to a damages?
These questions were recently answered by the European Court of Justice, which ruled in the Judgment of 23 October 2012, No. 629/10that in the event of passenger disembarkation with a three-hour delay after the scheduled timethe latter is entitled to request the lump-sum compensation scheduled for the cancellation of the flight.
See on this point the EC Regulation No. 261/2004 which provides that, in the event of flight cancellation, passengers may receive lump-sum compensation of between EUR 250 and EUR 600.
The above principle makes application of what has already been established at Sturgeon judgment of 19/11/2009in which the Luxembourg courts held that passengers of delayed flights can be assimilated to passengers of cancelled flights as regards their right to compensation.
It is clear that compensation cannot be claimed if the air carrier proves that it was caused by extraordinary circumstances that could not have been avoided even if all reasonable measures had been taken, i.e. circumstances beyond the air carrier's actual control.
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Good faith in the performance of a contract
In recent years, doctrine and jurisprudence have gone so far as to broaden the concept of good faith in contractual performance, defining more and more extensively what are the actual obligations of the parties at all stages of the contract's performance.
It is a well-established principle that good faith, i.e. mutual loyalty of conduct, must govern the performance of a contract, as well as its formation and interpretation, and accompany it at every stage. This obligation therefore requires consideration to be given to interests that are not the subject of specific protection and to fairness of conduct in the performance itself.
Good faith in the performance of the contract, therefore,
".....is embodied in a general obligation of solidarity requiring each party to act in such a way as to preserve the interests of the other, irrespective of both specific contractual obligationsuali, as from the , this commitment to solidarity finding its primary limit solely in the self-interest of the subject, bound, therefore, to the performance of all legal and/or material acts that are necessary to safeguard the interest of the other partyinsofar as they do not entail an appreciable sacrifice on its part....."[1]
It is also recalled that
".....the conduct in good faith and fairness of the individual contracting party is aimed, in compliance with the balancing of the respective interests, at protecting the positions and expectations of the other party; in this context, it is legitimate to configure as components of the binding relationship the duties instrumental to the satisfaction of the rights of the contracting parties, so that it has been held that even the mere inertia conscious and intentional, which is an obstacle to the fulfilment of the other party's right, adversely affecting the end result aimed at in the contractual settlement of the opposing interests, contravenes the duties of fairness and good faith and may therefore constitute a breach of contract.or".[2]
Therefore, the duty of good faith is not only synonymous with refraining from carrying out acts detrimental to the interests of the other partybut must be interpreted as a proactive obligation of one party to put in place all those attentions aimed at avoid prejudice to the positions of the other contracting party.
It has been held, in fact, that jurisprudence, starting from the assumption that even inaction on the part of a contracting party may cause damage to the other party, has held that omissive conduct may be considered contrary to good faith if it does not appear that the inaction was dictated solely by the contracting party's need not to harm its own interests.
The duty of good faith must lead the parties to conduct themselves in such a way as to preserve the interests of the other contracting party, and the only limit to this obligation is the contracting party's own interest.