THE OMNIPRESENCE OF GOOD FAITH IN ROMANIAN LAW
THE OMNIPRESENCE OF GOOD FAITH IN ROMANIAN LAW

Summary/Abstract: Bona fides, or good faith, has been part of the legal system since Roman times and has been perpetuated through the ages to the present day. Whereas in those times solemn formulas were used and their misuse could lead to the loss of the subjective civil right, in material terms, or to the loss of the civil process, in procedural terms, nowadays the internal will or the real will of the parties prevails. The importance of good faith was recognised in the classical era, in Roman times, as it results from Celsus' definition ius est ars boni et aequi (law is the art of the good and the just) [1]. The principle of good faith was in clear contradiction with Roman private law, especially early Roman private law which was a law of excessive formalism, of sacred formulas and oaths specific to the age. However, as the law evolved, so did the Roman perception of law in general and of the influence of good faith in particular on socio legal relations. Today, the principle of good faith is present everywhere in state regulations, from the Romanian Constitution to the Code of Civil Procedure. We believe that, although the topic is a very old one, it is still relevant, often encountered in the new contemporary social legal life. This generous principle is the subject of much debate among both practitioners and legal theorists. In order to support this opinion, we will focus on the various forms in which good faith has been regulated in our legislation, we will also discuss a relatively recent decision of the Constitutional Court of Romania, more precisely on Decision no. 245 of 27 April 2023 on the rejection of the exception of unconstitutionality of the provisions of Article 283 para. (4) letter n) of the Code of Criminal Procedure, but we will also mention other decisions considered by us as relevant to the issue of good faith.

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