حسن النية في تكوين العقد

Abstract

The Good Faith principle is a legal principle with ethical root, it is consecrated by many civil legislations as the Algerian civil legislation and among many eligibilities as the contract ,but the majority of these legislations include this principle in the step of the contrast’s execution not in the step of the settlement’s contrast where the principle of the autonomy of will is controlled and results many unfair results ,this matter push many legislation to reorganize this step awards the good faith’s eligibilities . The good faith principle is considered as a general principle which covers the contract at its both settlement stage and its execution stage, but the concept of the good faith is differed following to its position in law generally and to the contract specially. This point have push us to look for the principle’s concept at the settlement stage of contract by researching its historical and philosophical roots, we have also trying to give it a definition which convene to this stage which is full of connotations and contains ,we have also distinguish this principle from the other similar systems. The good faith principle organize many eligibilities in the last stage of contract, which are not mentioned by the majority of legislations but it’s approved by the judiciary and the doctrine, especially that they are proved their efforts to eliminate the unfair results of the autonomy of will principle and the liberty of contracting , we can also consecrate these eligibilities organized by the good faith principle by a preliminary contract, in addition the misuse of these eligibilities provoke a legal sanctions that we have tried to present it . The good faith principle presents many guarantees and a protection of the will which create the contract, whereas it impose its conditions on the first will creating the contract “offer”and on “the acceptation” also, in addition this principle has many eligibilities which are imposed through the meeting of the offer and the acceptation, either, the misuse of these eligibilities provoke another sanctions which are presented in our study. We have also study the good faith’s eligibilities in both of the will expression aspects and in the will defects, as well we have added finally its eligibilities in special cases of will like its conditions concerning the contractual acting for , and its eligibilities in the convention with a minor. Thus, we have covered the good faith subject from all its aspects at the contract settlement.