Good Faith - Implications regarding the Property Right and the Possibility of Paralyzing the Claiming Action by the Good Faith Buyer

AuthorDinu, C.
PositionLaw Faculty, Transilvania University of Brasov
Pages113-116
Bulletin of the Transilvania University of Braşov
Series VII: Social Sciences • Law • Vol. 5 (54) No. 2 - 2012
GOOD FAITH – IMPLICATIONS
REGARDING THE PROPERTY
RIGHT AND THE POSSIBILITY
OF PARALYZING THE CLAIMING
ACTION BY THE GOOD FAITH
BUYER
Cristina DINU1
Abstract: By law, good faith is presumed, the rebuttable presumption in
this regard must be overturned by contrary proof by the party claiming
adverse party bad faith. In the absence of contrary evidence, the rebuttable
presumption of the existence of good faith produces legal effects often
controversial in the current judicial practice. One of these effects is the
crippling of legal actions of a claim by the buyer in good faith, to the
detriment of the true owner who loses ownership in this manner.
Key words: property, good faith, bad faith, constitutive effects, good faith
buyer.
1 Law Faculty, Transilvania University of Brasov.
Etymologically, “good faith” comes
from Latin, from the expression “bona
fides” which derives from the adjective
bonus (good; good man, honest man) and
the noun fides (with the meaning
trustworthy, honest, trustful) [1].
As a legal institution, good faith has its
origin in the Roman law, being closely
connected to the Praetorian property
institution, when the development of
commerce and, especially of the one with
slaves imposed protection of the good faith
buyer in these transactions. In the case of
these transactions, the seller delivers the
goods, and the buyer pays the price. If
subsequently, the seller requires the return
of the slave on the grounds that the
solemnities of the contract were not
respected, and this was a bad faith reason,
he was punished for his bad faith. The
good faith buyer was able to use the
exception of the sold and transferred
object – exception rein venditate et
traditae. This exception allowed the go od
faith buyer to keep the slave considering
the fact that a prospective return would be
contrary to the equity laws [2].
The mechanism of the forming of good
faith is a complex one, implying a
psychological activity as well as an
exteriorization of it in the society under the
form of an attitude [3]. Good faith implies
values which most often overlap and are
interdependent. This seems to be the result
of a mental activity which finds its origin
in the human conscience – a purely human

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT