Differences in Doctrinal Analysis
A very similar picture emerged on the level of doctrinal analysis. Even where two codes contain general provisions rooted in the same historical soil (as is the case in France and Germany)371 there are significant differences in the way in which they are applied.[536] The interpreters of the Italian Code initially followed the very restrictive French approach and were hostile to the notion of an exceptio doli.[537] The draftsmen of the Austrian Code, in tune with contemporary Natural law thinking, had been equally unsympathetic to the equity of Roman law and did not adopt a good faith clause at all.374 Of course, perceptions have changed considerably over the past 200 years.3'5 Nevertheless, neither the practical result nor the various ways of conceptualizing them are always the same.3'6 The new Dutch civil code, on the other hand, goes even further than German law in suffusing its law of contract with redelijkheid en bill ijkheid.377
The range of application of the notion of good faith, of course, depends on a large variety of factors.378 One of them is the availability of other doctrines and the scope assigned to them.
Among these doctrines which in some legal systems do the job for which in others a good faith provision is available are culpa in contrahendo, obligations d'information, laesio enormis, the abuse of rights, personal bar, interpretation of the parties' intentions (whether standard or 'supplementary'), unconscionability, doctrines of change of circumstances or erroneous presuppositions, force majeur, and mutual mistake. A number of them are still regarded, in some jurisdictions, as emanations of the principle of good faith. Others have become autonomous legal doctrines or have always had their distinctive contours and concerns. The range of doctrines relied on by the common law jurisdictions is hardly less varied: reference is made to implied terms, estoppel (including proprietary estoppel), part performance of a contract in equity, the de minimis rule, qualifications of a legal right by reference to the notion of reasonableness, relief against forfeiture in equity, the3/4 For details, see ibid. 1061 ff.
3~ For Austria see, e.g., ibid. 1074 if.
376 In spite of the new, more liberal approach towards good faith in Austrian law (strongly influenced by German jurisprudence) it is often emphasized that not everything acknowledged under $ 242 BGB may simply be transported into Austrian law; see the discussion by Peter Rummel, in idem (cd.), Kommentar znm Allgenteinen Bilrgerlicheii Gesdzbnch, vol. ii (2nd edn., 1992), § 863 n. 2.
377 See arts. 6:2, 6:248, 6:258. For a comprehensive (comparative) analysis, see now M. W. Hesselink, De redelijkheid en billijkheid in he! Eunqvse priimfredit (1999); for an English summary, see idem, in Hartkamp and Hesselink (n. 5) 285 ff.
17R For details, see Whittaker and Zimmermann, 'Coming to Terms with Gcxxl Faith' (n. 368) 653 ff. For English law, cf. also J. F. O'Connor, Good Fziif/r in Englisli Law (1990), 17 ff.
maxim according to which no man can take advantage of his own wrong, breach of confidence, fundamental mistake, repudiation, and, occasionally, even good faith in the exercise of a contractual power.
4.
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