Comparative Study of "Good-sense in Contracts" in Iran

International Journal of Economy, Management and Social Sciences, 3(1) January 2014, Pages: 71-75
TI Journals
International Journal of Economy, Management and Social Sciences
ISSN
2306-7276
www.tijournals.com
Comparative Study of "Good-sense in Contracts" in Iran Law
and France Law Bashmaee, Imamieh Rights
Ghobad Kazemi 1, Mehdi Hariri *2, Narges Shakarbeigi 3, Alireza Shakarbeigi 4
1
Department of Law, Kermanshah Science and Research branch, Islamic Azad University, Kermanshah, Iran.
Department ofLlaw payam Noor university, Iran.
PhD student, Department of Quran and Hadith Sciences, Ilam University, Iran.
2,4
3
AR TIC LE INF O
AB STR AC T
Keywords:
One of law organs that originated from human’s first moral principles, it also plays important role
in the great law organs in the world (Kaman La- Roman Germany-Islam) is good-sense.
Nowadays, it leads the contracts to conveniences regarding the will, mental factors in order to
personalize the private law.
Good-sense is mental and psychological including (honesty, error-image) that should be done well
in the process of contraction.
Good-sense plays an important role in trilateral process of contracts (contraction, application and
interpretation), it refers also to French law organ (article 3, amendment 1134 of French, civil law)
as the case to address, but in Iran the necessity of good-sense has never in any contract, it is a fault
in Iran’s civil law.
Regarding this fact that good-sense is mandatory rules to general order, if it is not considered in
French’s and Iran’s law, it will influence in the contractors, it will cause the rejection of contract.
good-sense
identity of good-sense
guarantee of good-sense
© 2014 Int. j. econ. manag. soc. sci. All rights reserved for TI Journals.
Introduction
Good-sense is an old concept in law. Some French writers1 have referred to the first appearance of it in three century before the birth of
Jesus. Such background provides the deep meaning and legal application.
There are two main steps in revolving good-sense which are different in their time, but their values are the same. The first career came to
the fore with Roman law, it took a thousand years. (from the third century before Jesus’ birth to the sixth and seventh century after it). It
has been a dark age for good-sense, because good-sense did not play an important role, it was just a name, The second career commenced
from nineteen century until the present age in which good-sense has increased.
As a term, good-sense has been called, "ex bona fides"2 among the legal writers especially French ones. Some of French writers’3
concerned Roman law to define and to assign good-sense in their contracts (article3, amendment 1134 of legal, civil law), and some 4
believed that Roman law did not influence in the present law of good-sense at all.
The study of first, French, primarily, civil law shows that Roman origin of good-sense has been considered very much, but not approved.
Regarding the Roman origin of good-sense, one of French writers said, "all contracts should be interpreted on contractor’s intentions, then
we should not just concern the words in the context of contract", hence they believe in an idiom "L’evolution de la notion de bonne foi.5
One of French writers6 has said that "good-sense is aligned with faith and devotion in Christianity, then spiritual, good-sense turned into the
moral, logical good-sense in order to avoid general and public pressure".
Such legislators7 believe that good-sense dominates on all law of European, Christian countries, and the contracts which devoid the
contractors of their necessities, should not be exceptional, hence they should be turned into a general principle.8
"good-sense" is one of moral discussions which has existed from Mohammad’, time messenger of Islam. On the other hand, it also
accommodates with Islamic principles, hence it has been accepted. Such legal organ has been designed in "Islamic rights", it has been left
from some intelligent legislators.
1
. Jaluzot, Béatrice, la bonne foi dansles contrats, etude comparative de droit Francais, Allemand et Japonais, Dalloz, 2001, n..40.
. Gamal, Mahmoud, Eddine Zaki, La bonne foi dans ĺacquistion des drots en droit privé, université Fouad 1er, 1952, n. 21.
. Chevalier, La bonne doi nécessaire pour bénéficier de prescription abrégée, Rev. Trim. 1940-41 n.39 p. 157.
4
. Térre, Francois, Simler philippe, Lequette Yves, droit civil, les obligations. 6 ed Dalloz/ paris 1996, n. 414.
5
. Caen, G. Lyon, de L’évolution de la notion de bonne foi RTD civ, 1946, p. 83.
6
. Broggini, Gerardo, lábus de droit et le principe de la bonne foi aspects historiques et comparatives en: Abus de droit et bonne foi Sous la direction de Pierre Widmer et Bertil
Cottier, edition universitaires de Freiborg 1994, P. 12.
7
. Broggini, Gerardo, op cit., p. 11.
8
. Cazzaniga, Jean louis, introduction histoique au droit des obligations, coll. droit fondemamtal puf1992 n. 37.
2
3
* Corresponding author.
Email address: [email protected]
72
Ghobad Kazemi et al.
Int ernational Journal of Economy, Mana ge ment and Soci al Sci ences , 3(1) January 2014
First discussion: Good-sense
Good-sense includes two words: "good" and "sense" good means well-being9 , being good, being beautiful, goodness, beauty and sense
means "intention, will and process"10, as whole, it means the good intention.
French legislators believe that good-sense is "an honest, right guide"11 and "good-sense is necessary for owner and borrower", it should be
assigned for what honesty is necessary12, and some said honesty means "the lack of mal-intention" 13. Some14 define it in the moral
discussions meaning the perception of law which causes borrower to return owner’s loss and law also rejects any cheating.
"Somebody who contracts logically, or somebody who does any deed legally should affirms his actions, it is called good-sense".
The other said15, "good-sense is one’s thought who mistakes legally, he imagines his action is legally true, while it is not, and legislator also
awards him about damages, resembling to an actual owner of a contract gets his property (Article 304 civil law).
One of French writers defines good-sense16 as honesty and rightness. It resembles to article 3, branch 1134 of French, civil law,
"contracts should be done on good-sense".
Despite article 1134 of French17, civil law, one of French writers has not defined good-sense, but it can inferred from legislative ideas,
good-sense or honesty of contract relations. Regarding article 55 of law approved on 11 Mars in 1957 of literary, artistic possession, it
means the responsibility of accompaniment which should be done between contractors.
a) Good-sense against misrepresentation or rejection of contraction
b) Good-sense is on the contrary with narrow law good-sense in two foresaid articles define on the common intention of contractors or
their goal, it is also in article 3 branch 1134 of civil, French law.
c) Good-sense is apposite of cheating means honesty and correctness which is in article 1147, 1150, 1240, and 1869 of French, civil law,
and good-sense rejects every cheating, but it shows the lack of fault.
In the second group, good-sense is one’s ignorance either he hasn’t any knowledge about a person’s right such as those mentioned in
articles 201, 202 of French civil law, or he does not know a condition such as those of article 1645, 2009 of French, civil law.18
"There is no term as good-sense in Iran’s law, but after studying good-sense in the foreign law, it is used to contract honestly other than
special issues," they were mentioned in articles 220, 225 and 279 of civil law as good-sense. Mostafa Adl19 mentioned in his book on civil
law that applying article 220 of civil law provides good-sense between contractors, he said: "where as it is not mentioned in civil law
directly, but it is approved in article 220. It is clear that legislator asks the contractor’s good-sense, if not the contractors should be
responsible for conclusion."
"Judge can assign every moral behavior as good-sense which is requisite condition of contract, in order to avoid limitations".20
"Regard the well-known principle ,knowing things through contraries ,good-sense is a necessary, psychological concept that should be
treated well from beginning of contraction until the end. It is a duty by which contractors should be responsible for, the factors of goodsense is honesty and error-image".
It seems, good-sense is not directly mentioned in Iran, and there are only some references in civil law: unauthorized contract. But
nowadays, good-sense is accepted in the most of logical organs, good-sense is an active base of duties.
Discussion tow: Identity of Good-sense
Good-sense is a standard that provides the legislative principles, it produces the different rules.
According to Sanhoury’s definition, "standard is a mid-way of social guidance which provides people to accept the special conditions of
every specific hypothesis".21 Standard doesn’t continue as a legislative principle, instead it is a general order for judge.22 On the other hand,
it is not defined expressively, resembling to the branches, it is conditional.
Hence, good-sense is a standard which has the different meanings, in fact it is a changeable, geometries concept which is not constant, and
its reflexivity is also dangerous.23
The second possibility assigns good-sense as a principle. Good-sense has been studied in the law of different countries, but they have not
mentioned it as a principle.
As what foresaid, a principle means "a general idea including the connective principles in which there are some logical relations which is
principle, it is also abstract, therefore, regarding the general principles, there are some logical relations with special features.24
Some of French legislators25 believe that the contractor’s benefits should also be considered. In German law, a judge’s fair decision
concerning good-sense in the contractor’s benefits,26 their behaviors, and their conditions.
9
. Amid, Hassan, The Glossary of Persian Amid, Tehran, Amir Kabir, 1379, first volume, p. 792.
. Amid, Hassan, ibid, volume 2. P. 1630.
. Le Tourneau, Ph., Repertoire civil Dalloz, Bonne foi, 1995, n. 5; Jourdain, la bonne foi dans le formation du contrat rapport francais, op., cit, p. 121.
12
. Planiol, M.. G. Ripert et p. Esmein, Traité pratique de droit civil francais t. IV paris 1930, n. 379.
13
. jourbain,
14
. Larombiere, Traité thé thēorique et pratique des obligtatiaus, vol. I p. 331, n. 5.
15
. Mosavi Bojnoordi, Said Mohammad, the bottom of principles, Quarterly of law views, n. 2, summer 1375. P. 25.
16
. Ray, Jean, Index du code civil, these complémentaire pour le Doctorat èt letters, paris, Alcan, 1926, p. 46.
17
. Flour, Jacques, les obligations Ĺ act Juridique, 1998 paris n. 386.
18
. Becquart, Les mots â sensmultiple en droit civil francais, paris, 1928 p. 69.
19
. Mostafa Adl (Mansoor Alsaltanat) one of legislators of Iran’s civil law.
20
. Katoosian, Nasser, general principles of contracts, vol. 3, p. 57.
21
. Al-sanhouriy, le standard Juridique, in: Recueil d’études sur les sources du droit en l'honneur de F. Gény t. II, les sources gēnērale, Des systemes Juridiques actuels, Paris
1934, p. 154.
22
. Ibid.
23
. Ghestin,J. Traité de droit civil, la formation du contrat 3éd LGDJ. Paris 1993, n. 263.
24
. AL sanhoury, le standard Juridique, in: Recueil d’études sur les sources du droit en l'honneur de F. Gény t. II, le sources gēnērale, Des systemes Juridiques actuels, Paris
1934, p. 146.
25
. Planiol. Ripert et Esmein, traité pratiqede droit civil Francais, t. VI, les obligations, premiere partie, paris, 1930, n. 349.
26
. Ghestin, J. Traité de droit civil, la formation du contrat 3éd LGDJ. Paris 1993, n. 272.
10
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Comparative Study of "Good-sense in Contracts" in Iran Law and France Law Bashmaee, Imamieh Rights
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Internat ional Jour nal of Economy, Mana ge ment and Social Sciences , 3(1) January 2014
Third Discussion: The Region of Good-sense
There are two factors in region of good-sense:
a) The behavior order in contraction
b) The order of assigning the contract items
The first aspect of article 3 branch 1134 (operation of good-sense) means an honest, clear application. The contractor should be honest and
trustful in all of responsible even there are some limitations and problems in the contraction. One of writers27 has used this formula: "every
contractor should behave like a good father28 in his contract" while there are some external internal, unpredictable events, we can avoid
contracts, there are some doubts.
Some believe that29 "an honest contraction is a principle that judge assigns it". Whereas neither contract nor law has not expressed the
contractor’s deed-such expectation is not also logical-judge should examine whether contractor has behaved in good-sense in the different,
special conditions. In other words, if there is some problem in the contraction, judge should good-sense, because the goal of every contract
should be concerned. It is necessary to say that such behavior does not only examine the contractor, instead it is a principle that concerns
the other side. Domat30 said, "every contractor should be honest to the other, he should be fair in every case, he should be responsible for
everything, because bilateral responsibilities should be honest and fair".
Some say, "good-sense in some responsibilities impose people to be honest, right and fair". 31 Hence, the owner cannot ask some difficult
responsibilities from contractor in the pretext of good-sense, instead he also should be responsible, therefore, honesty in bilateral.32
B) The behavior order in contraction
Good-sense is not a behavioral principle, instead it can impose new responsibilities, in fact, it is a cause to assign a contract freely, and it is
in Extenso. Domat and Porthier believe that good-sense is a principle in some of contracts. Domat believed, there are some responsibilities
in conducts, saving it to be guarantee in rendition contract.33
Pothier34 has differentiated between the responsibilities of good-sense and those of others. He believes that good-sense provides vender
two responsibilities in rendition contract. He should not cheat, he shouldn’t hide fact, he should acclaim the real price of conducts. The
buyer is also responsible, he should not misrepresented he does not but conducts less than the real price. In fact, Potheir has introduced two
forms of misrepresentation: he should not cheat, he should not provide a condition in which render sells goods higher than actual purchase
money. Some of duties originate from the natural contract, hence they are not based on good-sense.
One of legislators believed that good-sense is concept of honesty in contraction, it is considered generally in the different, civil law:
Article 225 of civil law:
"Being appropriate is a concept which is not expressed directly".
Article 220: Contractors should concern the results of common contracts.
We know that the main effect of contract makes the contractors responsible for. On the other hand, regarding the principle of willdomination, it should be added too. The contract is also influenced by contractor’s common intention which is recognized external factors.
Such recognition is always not clear, it a company's some problems to define an actual will and common intention, hence contracts are
interpreted in common custom.
Planiol and Ripert said35, "good sense a means the responsibility does not exclusively to contract context", or Carbonnier 36, "good-sense
means a person does not imprison in the contract context, in order to avoid the soul of it."
According to French doctrine37, the research of contractors’ intentions shows that the real element of flexible contract is good-sense which
is based on inflection. Abry Vero says, "contracts should be done on good-sense means, "according to contractor’s goal in the contraction.
Beudant38 believes that "article 1156 of civil law is based on contract interpretation, another phrase of article 1134 of 3 branch of civil law
which provide the common intention of contractors.
Forth Discussion: Guarantee of good-sense
Whereas the principle of good-sense is flexible cause in law, but it is possible to decrease the law principles by it, besides the security of
contract is also important. French doctrine39 believes that French judge has been ignorant to the importance of article 3 branch 1134 of civil
law until 1920, he believed it was not a cause to intrude the contract. Once, the sublime council of France documented to good-sense in
order to control rejection in 1956.40 Such rule has been abandoned for years, doctrine was not interested in studying good-sense. One of
French authors41 said, good-sense has been asleep in this career; but the economical, commercial development of twenty century caused to
27
. Demogue, Traité obligations en général T.VI Paris 1922. n..6.
. En bon père de famille
. Ibid., Planiol et Ripert., et Esmani Traité pratique de droit civil francais, t: VI les obligations, Paris, 1930. n. 375.
30
. Domat, les lois civiles dans leur ordre naturel, 1689, Des conventions en general, Tritre I section. III n. 12, cite par Arthaud, De la bonne foi et des effets en matiére civil,
these, Touluse, 1891, p. 107.
31
. Ghestin, J. Traité de droit civil, la formation du contrat 3éd LGDJ. Paris 1993,n. 255.
32
. Grophe, Francois, le Principe de la bonne foi, paris, 1928, n.9.
33
. Domat, les lois civiles dans leur ordre naturel, 1689, Des conventions en general, Tritre I section. III n. 12, cite par Arthaud, De la bonne foi et des effets en matiére civil,
these, Touluse, 1891, Trait des loix chap. V n.
34
. Pothier, Traité des obligations novelles, ed: 1818, IV, p. 157.
35
. Planiol, Ripert, Esmain, Traité pratique de droit civil francais, t: VI, les obligations, paris, 1930 n. 379.
36
. carbonnier, les obligations, droit civil, t. IV, 20 ēd, 1996, n. 113.
37
. A. Breton, des efflets civils de la bonne foi, Revu critique 1926 p. 87.
38
. cours de droit civil francais 2 ēd (par R. Beudant, p. Levebours- pigeonniére et G. lagarde) t. VIII, les contrrats et les obligālions, n. 307.
39
. strack par H. Roland et L. Boyer, obligations, 2. Le contrat, 5 ēd, Litec, 1995, n. 01198.
40
. Cass civ 1er, 14 Mars 1956, Bernard, Bull civ In. 133, p. 107 D. 1956 Jurisp 449 note J. v.
41
. Stark, Op. cit..
28
29
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Int ernational Journal of Economy, Mana ge ment and Soci al Sci ences , 3(1) January 2014
increase it in the different aspects. Nowadays, conditions have changed, and the sublime council of country referred to good-sense more
than ever, and even the rules of primitive courts were rejected.42 Good-sense authorizes a judge to reject some of logical contracts, he can
neutralizes the logical effects of a condition minus omitting it from the contract relation, or he can nullify some of conditions in the contract
by good-sense. Judges usually face "the waste, imposed condition" in all of countries. There are some rules about the conditions in France
by which the judge can nullify the limiting conditions of competition. The law of 1976 of good-sense has been the main condition43 of
rejection in Germany. The study of rules of French courts showed that good-sense is not a document to reject condition, and the legislative,
French process was also aligned with doctrine which believed that documentation of good-sense is odd.44
Some of Iranian legislators believe that judge has no option in such condition regarding the principle of dominating will and the necessity
principle of contract (articles 10, 219 of civil law). But legislator can predict some editions of contract in the light of social well-being.
Article 4 of principle of hired and hirer in 1356 which has not been considered. French process uses good-sense to control law principles
(against logical contracts) in order to avoid, and to control such principles to those who have cheated. For example45, according to the law
hirer has priority to hire a house. Landlord who tends to increase the price of hire more than the value of market is to make hirer unable to
hire it. In the light of good-sense, the primitive court tries to abandon the landlord: "landlord is responsible to reject the hire with goodsense. He should assign the appropriate price and the law principles do not let him to introduce the free price, higher prices in order to stop
hirer’s right". The sublime council of country rejects the primitive court rule, it uses the principle of cheating, it mentions the logical law
(priority of hirers) cannot be controlled by good-sense. It seems, the application of contracts in French law can be controlled by good-sense
and randomly by abuse. But if a right does not originate from a contract, it can be documented by cheating principle.
If judge interferes in a contract in the light of good-sense, it will be classified in two branches including:
A) Interfering of judge according to the condition of contract, good-sense
As whole, the role of judge and the conditions are very important, for example while discussion does not produce power, the contractors are
responsible for serious suggestions, but they are not responsible for such suggestions. 46 If such suggestions do not conclude, it is difficult to
find one who commits crime, but he should return any damage. The judge should assign the principles to recognize the criminal. He has
done some deeds on good-sense or reject it, in order to return damages.
Therefore, the interference of judge is either based on good-sense contraction or civil law rules, is necessary.
B) Interfering judge in the light of good-sense
Rule French law is very doubtful about imposing good-sense with judge. Such doubt results from expressive, logical rule in order to
develop legislative process. However, nowadays, branch 3 of article 1134 infers that judge has choice to do good-sense in the contracts.47
The long, legislative process of a contract, the control of good-sense according to branch 3, article 1134 have done by judge48, but will the
control of contract make the judge interfere in the contract?
French authors are doubtful about this question. One of writers has rejected it49, but others50 said that the necessity of good-sense in the
contracts let the judge organize the conditions, but it is not just to recognize them, instead branch 3, article 1134 lets the judge does
contracts to make them guarantee, but he cannot edit or change the items.
Conclusions
1) The law of good-sense started in 1804, it was inspired by natural law. In branch 3 of article 1134 of French, civil law was said that
"contracts should be done on good-sense". Therefore, contractors are not responsible for statutory provision, but they are responsible for
fundamental conditions of law.
2) Good-sense is one of the main, logical principles such as the necessity of correct contract, it took to three centuries before Jesus’ birth, it
means the concepts such as authority, honesty, correctness. It lets judge interfere in the logical relations, he can support one of contractor or
add some duties.
3) Good-sense is not told expressively in Islamic rules, but it is not also strange, and it takes a long time. The discussion of rejection of
misrepresentation , rule of no damage, principle of validity are principles of good-sense.
4) Good-sense has two factors: a) honesty and correctness b) error-image
5) Good-sense meaning error-image is a hypothesis which should be approved contrary, therefore, legislator believes it honestly and to
support him.
6) Good-sense internal-international or laws of different countries in the international conventions, hence it belongs to the mandatory
principle of general order which in not aligned even conditionally.
7) Good-sense plays an important role in three process (contraction, operation and interpretation), Iran’s civil law is against French civil
law has not mentioned the necessity of good-sense, hence it is a fault in Iran’s civil law. There are many logical documents such as (220,
223, 225, 279, 438, 439 of civil law), the special principles of records, insurance, commerce and electronic commerce.
8) Both considering and rejecting good-sense influence in the contractors and the rejection of good-sense rejects contract, or leave
undocumented, for example: in Iran law accuracy in article 11, 12 of insurance law in 1316 and article 218 of civil law are examples of
rejection. The cases such as article 438 of civil law causes the rejection.
42
. Cass 3, civ, 16 dec 1987, Jep, 1989, II 21184.
. Traduction A, “Rapport de droit allemand”en: les clauses abusives et le consommateur, RTD, comp 1982 p. 926.
. Jaluzot, Béatrice. La bonne foi dans les contrats, etude comparative du droit Francais, Allemande et Japonais, Dalloz, 2001. n., 1401.
45
. Cass. 3 civ, Juill. 1995 Jcp 1995, II 22528 concl. J. F Weber note B. Beignier.
46
. carbonnier, op. cit, n. 178; B. oppetit, ĺ adoption des contrats internationaux aux changements de circonstances, Clause du “hardship”, JDi 1974 p. 807.
47
. Mazeaud, Denis, obs. Sous com. 3 Juin 1997, SNC Mercurec. SA siDr D. 1998, som. Com, p. 113 et 114.
48
. Cass. Ass. Plēn. Ler dec 1995 D. 1996 p. 13 concl M. Jēol. L. Aynēs.
49
. Bihr, philipe, note sous civ 3e 10 Mars 1993. ophlm de Nancy c. Guēnin D. 1993. 357
50
. Albert, Jean, note sous civ 313 avr. 1988. Mme Bianchi c. Mme Meyer D. 1989. 334-335.
43
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