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Department of Law, Kermanshah Science and Research branch, Islamic Azad University, Kermanshah, Iran.
Department ofLlaw payam Noor university, Iran.
PhD student, Department of Quran and Hadith Sciences, Ilam University, Iran.
2,4
3
AR TIC LE INF O
AB STR AC T
Keywords:
One of law organs that originated from humans first moral principles, it also plays important role
in the great law organs in the world (Kaman La- Roman Germany-Islam) is good-sense.
Nowadays, it leads the contracts to conveniences regarding the will, mental factors in order to
personalize the private law.
Good-sense is mental and psychological including (honesty, error-image) that should be done well
in the process of contraction.
Good-sense plays an important role in trilateral process of contracts (contraction, application and
interpretation), it refers also to French law organ (article 3, amendment 1134 of French, civil law)
as the case to address, but in Iran the necessity of good-sense has never in any contract, it is a fault
in Irans civil law.
Regarding this fact that good-sense is mandatory rules to general order, if it is not considered in
Frenchs and Irans law, it will influence in the contractors, it will cause the rejection of contract.
good-sense
identity of good-sense
guarantee of good-sense
2014 Int. j. econ. manag. soc. sci. All rights reserved for TI Journals.
Introduction
Good-sense is an old concept in law. Some French writers1 have referred to the first appearance of it in three century before the birth of
Jesus. Such background provides the deep meaning and legal application.
There are two main steps in revolving good-sense which are different in their time, but their values are the same. The first career came to
the fore with Roman law, it took a thousand years. (from the third century before Jesus birth to the sixth and seventh century after it). It
has been a dark age for good-sense, because good-sense did not play an important role, it was just a name, The second career commenced
from nineteen century until the present age in which good-sense has increased.
As a term, good-sense has been called, "ex bona fides"2 among the legal writers especially French ones. Some of French writers3
concerned Roman law to define and to assign good-sense in their contracts (article3, amendment 1134 of legal, civil law), and some 4
believed that Roman law did not influence in the present law of good-sense at all.
The study of first, French, primarily, civil law shows that Roman origin of good-sense has been considered very much, but not approved.
Regarding the Roman origin of good-sense, one of French writers said, "all contracts should be interpreted on contractors intentions, then
we should not just concern the words in the context of contract", hence they believe in an idiom "Levolution de la notion de bonne foi.5
One of French writers6 has said that "good-sense is aligned with faith and devotion in Christianity, then spiritual, good-sense turned into the
moral, logical good-sense in order to avoid general and public pressure".
Such legislators7 believe that good-sense dominates on all law of European, Christian countries, and the contracts which devoid the
contractors of their necessities, should not be exceptional, hence they should be turned into a general principle.8
"good-sense" is one of moral discussions which has existed from Mohammad, time messenger of Islam. On the other hand, it also
accommodates with Islamic principles, hence it has been accepted. Such legal organ has been designed in "Islamic rights", it has been left
from some intelligent legislators.
1
. Jaluzot, Batrice, la bonne foi dansles contrats, etude comparative de droit Francais, Allemand et Japonais, Dalloz, 2001, n..40.
. Gamal, Mahmoud, Eddine Zaki, La bonne foi dans acquistion des drots en droit priv, universit Fouad 1er, 1952, n. 21.
. Chevalier, La bonne doi ncessaire pour bnficier de prescription abrge, Rev. Trim. 1940-41 n.39 p. 157.
4
. Trre, Francois, Simler philippe, Lequette Yves, droit civil, les obligations. 6 ed Dalloz/ paris 1996, n. 414.
5
. Caen, G. Lyon, de Lvolution de la notion de bonne foi RTD civ, 1946, p. 83.
6
. Broggini, Gerardo, lbus de droit et le principe de la bonne foi aspects historiques et comparatives en: Abus de droit et bonne foi Sous la direction de Pierre Widmer et Bertil
Cottier, edition universitaires de Freiborg 1994, P. 12.
7
. Broggini, Gerardo, op cit., p. 11.
8
. Cazzaniga, Jean louis, introduction histoique au droit des obligations, coll. droit fondemamtal puf1992 n. 37.
2
3
* Corresponding author.
Email address: mehdihariri18@yahoo.com
72
. Amid, Hassan, The Glossary of Persian Amid, Tehran, Amir Kabir, 1379, first volume, p. 792.
. Amid, Hassan, ibid, volume 2. P. 1630.
. Le Tourneau, Ph., Repertoire civil Dalloz, Bonne foi, 1995, n. 5; Jourdain, la bonne foi dans le formation du contrat rapport francais, op., cit, p. 121.
12
. Planiol, M.. G. Ripert et p. Esmein, Trait pratique de droit civil francais t. IV paris 1930, n. 379.
13
. jourbain,
14
. Larombiere, Trait th thorique et pratique des obligtatiaus, vol. I p. 331, n. 5.
15
. Mosavi Bojnoordi, Said Mohammad, the bottom of principles, Quarterly of law views, n. 2, summer 1375. P. 25.
16
. Ray, Jean, Index du code civil, these complmentaire pour le Doctorat t letters, paris, Alcan, 1926, p. 46.
17
. Flour, Jacques, les obligations act Juridique, 1998 paris n. 386.
18
. Becquart, Les mots sensmultiple en droit civil francais, paris, 1928 p. 69.
19
. Mostafa Adl (Mansoor Alsaltanat) one of legislators of Irans civil law.
20
. Katoosian, Nasser, general principles of contracts, vol. 3, p. 57.
21
. Al-sanhouriy, le standard Juridique, in: Recueil dtudes sur les sources du droit en l'honneur de F. Gny t. II, les sources gnrale, Des systemes Juridiques actuels, Paris
1934, p. 154.
22
. Ibid.
23
. Ghestin,J. Trait de droit civil, la formation du contrat 3d LGDJ. Paris 1993, n. 263.
24
. AL sanhoury, le standard Juridique, in: Recueil dtudes sur les sources du droit en l'honneur de F. Gny t. II, le sources gnrale, Des systemes Juridiques actuels, Paris
1934, p. 146.
25
. Planiol. Ripert et Esmein, trait pratiqede droit civil Francais, t. VI, les obligations, premiere partie, paris, 1930, n. 349.
26
. Ghestin, J. Trait de droit civil, la formation du contrat 3d LGDJ. Paris 1993, n. 272.
10
11
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Internat ional Jour nal of Economy, Mana ge ment and Social Sciences , 3(1) January 2014
74
increase it in the different aspects. Nowadays, conditions have changed, and the sublime council of country referred to good-sense more
than ever, and even the rules of primitive courts were rejected.42 Good-sense authorizes a judge to reject some of logical contracts, he can
neutralizes the logical effects of a condition minus omitting it from the contract relation, or he can nullify some of conditions in the contract
by good-sense. Judges usually face "the waste, imposed condition" in all of countries. There are some rules about the conditions in France
by which the judge can nullify the limiting conditions of competition. The law of 1976 of good-sense has been the main condition43 of
rejection in Germany. The study of rules of French courts showed that good-sense is not a document to reject condition, and the legislative,
French process was also aligned with doctrine which believed that documentation of good-sense is odd.44
Some of Iranian legislators believe that judge has no option in such condition regarding the principle of dominating will and the necessity
principle of contract (articles 10, 219 of civil law). But legislator can predict some editions of contract in the light of social well-being.
Article 4 of principle of hired and hirer in 1356 which has not been considered. French process uses good-sense to control law principles
(against logical contracts) in order to avoid, and to control such principles to those who have cheated. For example45, according to the law
hirer has priority to hire a house. Landlord who tends to increase the price of hire more than the value of market is to make hirer unable to
hire it. In the light of good-sense, the primitive court tries to abandon the landlord: "landlord is responsible to reject the hire with goodsense. He should assign the appropriate price and the law principles do not let him to introduce the free price, higher prices in order to stop
hirers right". The sublime council of country rejects the primitive court rule, it uses the principle of cheating, it mentions the logical law
(priority of hirers) cannot be controlled by good-sense. It seems, the application of contracts in French law can be controlled by good-sense
and randomly by abuse. But if a right does not originate from a contract, it can be documented by cheating principle.
If judge interferes in a contract in the light of good-sense, it will be classified in two branches including:
A) Interfering of judge according to the condition of contract, good-sense
As whole, the role of judge and the conditions are very important, for example while discussion does not produce power, the contractors are
responsible for serious suggestions, but they are not responsible for such suggestions. 46 If such suggestions do not conclude, it is difficult to
find one who commits crime, but he should return any damage. The judge should assign the principles to recognize the criminal. He has
done some deeds on good-sense or reject it, in order to return damages.
Therefore, the interference of judge is either based on good-sense contraction or civil law rules, is necessary.
B) Interfering judge in the light of good-sense
Rule French law is very doubtful about imposing good-sense with judge. Such doubt results from expressive, logical rule in order to
develop legislative process. However, nowadays, branch 3 of article 1134 infers that judge has choice to do good-sense in the contracts.47
The long, legislative process of a contract, the control of good-sense according to branch 3, article 1134 have done by judge48, but will the
control of contract make the judge interfere in the contract?
French authors are doubtful about this question. One of writers has rejected it49, but others50 said that the necessity of good-sense in the
contracts let the judge organize the conditions, but it is not just to recognize them, instead branch 3, article 1134 lets the judge does
contracts to make them guarantee, but he cannot edit or change the items.
Conclusions
1) The law of good-sense started in 1804, it was inspired by natural law. In branch 3 of article 1134 of French, civil law was said that
"contracts should be done on good-sense". Therefore, contractors are not responsible for statutory provision, but they are responsible for
fundamental conditions of law.
2) Good-sense is one of the main, logical principles such as the necessity of correct contract, it took to three centuries before Jesus birth, it
means the concepts such as authority, honesty, correctness. It lets judge interfere in the logical relations, he can support one of contractor or
add some duties.
3) Good-sense is not told expressively in Islamic rules, but it is not also strange, and it takes a long time. The discussion of rejection of
misrepresentation , rule of no damage, principle of validity are principles of good-sense.
4) Good-sense has two factors: a) honesty and correctness b) error-image
5) Good-sense meaning error-image is a hypothesis which should be approved contrary, therefore, legislator believes it honestly and to
support him.
6) Good-sense internal-international or laws of different countries in the international conventions, hence it belongs to the mandatory
principle of general order which in not aligned even conditionally.
7) Good-sense plays an important role in three process (contraction, operation and interpretation), Irans civil law is against French civil
law has not mentioned the necessity of good-sense, hence it is a fault in Irans civil law. There are many logical documents such as (220,
223, 225, 279, 438, 439 of civil law), the special principles of records, insurance, commerce and electronic commerce.
8) Both considering and rejecting good-sense influence in the contractors and the rejection of good-sense rejects contract, or leave
undocumented, for example: in Iran law accuracy in article 11, 12 of insurance law in 1316 and article 218 of civil law are examples of
rejection. The cases such as article 438 of civil law causes the rejection.
42
Comparative Study of "Good-sense in Contracts" in Iran Law and France Law Bashmaee, Imamieh Rights
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Internat ional Jour nal of Economy, Mana ge ment and Social Sciences , 3(1) January 2014
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