Subjective Good Faith and Objective Good Faith: Misunderstandings from a Lack of Clarity in the Distinction of These Concepts (Buena Fe Subjetiva y Buena Fe Objetiva: Equívocos a los Que Conduce la Falta de Claridad en la Distinción de Tales Conceptos) (Spanish)

Abstract

This article makes clear the confusion in a sector of Colombian jurisprudence between the concept of objective good faith and subjective good faith that has transcended part of the doctrine and legislation (C. Co., art. 863). It seeks to show some serious misunderstandings such as: assume that the objective good faith includes both a good and blameless good faith in which the coach is not required; claim that the rule against their own acts is governed by the subjective good faith and is a manifestation of the theory of appearance; claim to protect in the name of the principle of good faith the mental representation of debtors who believe they have met, ignoring the requirement of good faith imposed objective to deploy an effective behavior; and incorrectly assess the scope of the presumption of good faith. These misunderstandings raises the need to regain the paths of Roman law, in which the original concept of good faith was always tied to the duty to honest and fair conduct compared to the other party to the contract.

Note: Downloadable PDF in Spanish

Keywords: objective good faith, subjective good faith, good faith free of guilt, bona fide presumption, theory of appearance, venire contra factum proprium