Good Faith in the new Brazilian Code of Civil Procedure: old news

André Barabino
TozziniFreire Advogados

Cooperation, respect, loyalty, and ethics are some of the elements composing the so-called objective good faith, sought in all social relationships. Even before having a legal nature, it shows a deep bond with ethical, moral, and axiological factors. In this line, the objective good faith is addressed by law since ancient times. In the Roman law, for example, before the creation of the good faith (bona fides), there was fides, from the goddess with the same name, with the looks and behavior of a trustworthy person. The violation of fides transformed the good and honest into evil and dishonest. This concept was associated with the person who had credit to do business at the time. Good faith was so important in this period that Cicero even claimed it was the pillar of justice.

Thus, the ethical-legal principle of objective good faith was created in Roman law. Now, good faith is a requirement for all legal relationships and entails practices as honesty, loyalty, faithfulness and ethics. Therefore, it is a general clause, an ancillary obligation, a sign of respect that must be strictly observed in all legal relationships.

The concept of objective good faith should not be mistaken for subjective good faith, which is the psychological, subjective aspect of a person, regarding this person’s knowledge or ignorance about a fact, and even the agent’s good intention, while the objective good faith, the subject matter of this article, refers to an objective rule, by which good faith should be interpreted as the series of acts and conducts that society expects from the person.

The understanding of the objective good faith is increasingly relevant in the Brazilian law nowadays, given the modifications introduced by the Brazilian Constitution of 1988, the Brazilian Civil Code of 2002, and the constant legal decisions based thereon. The adoption of objective good faith and the trust between contracting parties form the basis of the legal transaction is one of the fundamentals of all legal bonds and an important principle of contractual relationships.

In Private Law, with the course of time, it was noticed that the idea that the law should inflexibly provide for all possible situations of the daily life should be abandoned and give place to the understanding that a code should contain open and flexible rules capable of allowing the evolution of Law without requiring constant legislative intervention.

As we live in a globalized world, where facts happen extremely fast, the legal system cannot expect to provide for all possible events created by men, otherwise it could be classified as outdated and discredited with an amazing speed and, especially, could have no ways to cause the Government to discharge its duty to provide proper jurisdictional protection, as provided by the Brazilian Constitution.

Thus, the fact that the New Brazilian Code of Civil Procedure now considers objective good faith as a principle to be observed by the parties is not properly a new subject, to the extent the objective good faith has always been a rule of conduct that should guide any and all social relationships. Therefore, there would be no need to provide for such precept in any law, as good faith should underlie any social relationship.

However, legislators chose to insert good faith in the legal system through open rules intended for development of a common good, especially after the enactment of the Brazilian Constitution of 1988. As to procedural law, it should be observed by litigants and all other parties to the proceeding in their respective activities.

As a principle, also included in the new Brazilian Code of Civil Procedure, good faith is intended to guide the conduct of contracting parties and litigants pursuant to loyalty, correctness, honesty, fidelity, and cooperation in all stages of the agreement and lawsuit, respectively. Consequently, the parties become aware of the need to follow an ethical standard of conduct.

Therefore, Brazilian courts are responsible for properly enforcing the principle of objective good faith to the cases submitted, remembering ethical and moral matters, which have been forgotten by some in the last few years. Additionally, they will play an essential role in enforcing compliance with good faith in procedural matters, avoiding malicious procedural acts and procedural chicaneries, i.e., the well-known litigation in bad faith.

The enforcement of penalties for litigation in bad faith is still very rare in Brazilian courts, which ends up encouraging bad-faith litigants to resort on lies. However, with the new system and inclusion of procedural objective good faith, Brazilian courts are expected to enforce more severe penalties to such conducts in order to discourage unethical behavior, as well as indicates that such practice is no longer tolerated by the Brazilian legal system.