Bona fide, or good faith, constitutes a fundamental principle of Civil and Procedural Law, acting as a standard of conduct that imposes upon the subjects of a legal relationship the duty to act with loyalty, integrity, and rectitude. Its primary purpose is the preservation of ethics in legal relations, mitigating the abusive exercise of rights and ensuring legitimate trust between contracting parties.
Concept and Foundation
Legal good faith unfolds into two fundamental doctrinal strands: subjective good faith and objective good faith. Subjective good faith (ignorance of the fact) concerns the psychological state of the agent, who believes in the legitimacy of their conduct or the legal situation in which they find themselves, without being aware that they are infringing upon the rights of others. On the other hand, objective good faith, a pillar of contemporary Civil Law, is embodied in a standard of ethical behavior, requiring subjects to act with loyalty, cooperation, and transparency, regardless of the subject's internal intention.
The legal nature of objective good faith is that of a public policy norm, constituting a general clause that allows the judge to implement ethical values in situations not exhaustively provided for by the legislator. It acts as a rule of conduct, a source of ancillary duties (protection, information, and collaboration), and a limit to the exercise of subjective rights.
Historical Origin and Evolution
The institute dates back to Roman Law, specifically under the aegis of actiones bonae fidei, which granted the magistrate greater margin for equitable assessment, moving away from the formal rigor of ius strictum. Historical evolution culminated in the German codification (BGB, § 242), which elevated Treu und Glauben to the status of the supreme principle of obligations. In the Brazilian legal system, the transition from the 1916 Civil Code to the 2002 Code marked the shift from an individualistic paradigm to a social model, in which objective good faith became the structural axis of contractual relations.
Legal Provision in the Brazilian System
Good faith finds normative support in several legal instruments:
- 2002 Civil Code: Art. 113 (interpretation of legal transactions), Art. 187 (abuse of rights), and Art. 422 (principle of good faith in the conclusion and execution of contracts).
- Consumer Defense Code (Law 8.078/90): Art. 4, III, which establishes the harmonization of the interests of participants in consumer relations and the compatibility of consumer protection with the need for economic development, based on good faith.
- 2015 Code of Civil Procedure: Art. 5, which enshrines the duty of all subjects of the process to behave in accordance with good faith.
Practical Application and Jurisprudential Understanding
The Superior Court of Justice (STJ) has consolidated objective good faith through the theory of ancillary duties and the prohibition of contradictory behavior (venire contra factum proprium). Current jurisprudence applies the institute to prohibit the exercise of rights that, although formally provided for, violate the legitimate trust generated in the other party.
Notable is the STJ's understanding regarding supressio (loss of a right due to its prolonged non-exercise) and surrectio (emergence of a right due to the repeated exercise of a practice), institutes derived from objective good faith. Within the scope of the Superior Labor Court (TST), good faith is invoked for the interpretation of contractual clauses and for assessing the validity of terminations and agreements, always from the perspective of protecting the weaker party.
Contemporary Relevance and Impacts
In contemporary times, good faith is the instrument that allows for the adaptation of contracts to new technological and social realities. The current debate focuses on the use of good faith to curb the so-called "abuse of the right to petition" in civil procedure and in the modulation of pre-contractual liability. Modern doctrine, influenced by authors such as Judith Martins-Costa and Anderson Schreiber, reinforces that good faith is not just a limit, but a positive duty of collaboration to achieve the purpose of the legal transaction.
Legal and Jurisprudential References
- BRAZIL. Law No. 10.406, of January 10, 2002. Establishes the Civil Code.
- BRAZIL. Law No. 13.105, of March 16, 2015. Code of Civil Procedure.
- STJ. Jurisprudence Bulletin No. 762. Application of objective good faith in the interpretation of limiting clauses in adhesion contracts.
- STJ. REsp 1.848.331/PR. Recognition of the application of supressio as an unfolding of objective good faith.
- MARTINS-COSTA, Judith. Good Faith in Private Law: Criteria for its application. São Paulo: Revista dos Tribunais.
