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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.

by admin