INTRODUCTION TO CIVIL LAW AND
PERSONS
SUBJECTIVE GOOD FAITH I
SUBJECTIVE GOOD FAITH I
• Introduction
• Elements of good faith
• Art. 988/989 of TCC
SUBJECTIVE GOOD FAITH I
• Subjective good faith is stipulated under the Art. 3 of the TCC:
• «Where the law makes a legal effect conditional on the good faith of a person, there shall be a presumption of a good faith.»
• In this article it is stated that for the good faith has results on a legal transaction, the code should make reference to this situation. In other words, in case there is not any reference to good faith in a code, the good faith cannot have any results.
SUBJECTIVE GOOD FAITH I
• In this article, there is an other issue to be understood.
• This article states that there is a presumption of good faith in case there is a discussion.
• In other words, in case there is a discussion about whether the good faith exists in a case or not, the code says that it exists.
• Therefore, the party that claims that the good faith doesn’t exist will have to proof that non-existence of good faith.
SUBJECTIVE GOOD FAITH I
• In this article, good faith is mentioned but not defined.
• It is very close to the objective good faith. Both of them stand on the ground that every people should act with honesty during their legal relations.
• In case somebody acted in intentionally, even there is a impediment for gaining a right, he/she doesn’t have the subjective good faith.
• In other words, no one should be protected as she/he is acting in a such way.
SUBJECTIVE GOOD FAITH I
• The second paragraph of the article 3 of the TCC states that:
• «But the person who doesn’t show enough attention expected in such a case, cannot be considering as acting with sucjective good faith.»
• So, here, there is an exeption for the presumption of the good faith stipulated under the first paragraph.
SUBJECTIVE GOOD FAITH I
• So, the subjective good faith can be defined as followed:
• «Although he/she showed all attention required in such a situation, if he/she doesn’t know an impediment which will result a valid legal result, we can conclude that he/she has subjective good faith.»
SUBJECTIVE GOOD FAITH I
• The given definition includes both possibilities:
• Not to know the impediment
• Not to be able to learn
• The main articles that covers subjective good faith are TCC 988, 989 and 1023. There are also other articles which uses subjective good faith as a condition for obtaining the
property right on a movable and unmovable good. We will cover the very three article in the next week.
