McGILL
LAW JOURNAL
VoLUME 7
MONTREAL, 1960
NUmiBR 1
THE NOTION OF GOOD FAITH
IN THE CIVIL LAW OF QUEBEC
by George A. Rosenberg*
PRELIMINARY REMARKS
Although it is difficult to achieve a precise definition and delimitation of
the term “equity”, it is well accepted that equity is one of the principal ideals
which positive law must pursue. I suggest that if in the meaning of equity one
includes justice and morality on the one hand, and social expediency and order
on the other, equity then becomes the chief, and perhaps even the sole, rairon
d’etre of positive law in a civilized society.
Indeed, good faith acts as the
juridical needle which pulls the thread of equity through the various provisions
of the civil law of persons, property, and obligations, in the province of Quebec.
“intel-
lectual” good faith, and “intentional” good faith – one can subdivide these
into two and three more parts respectively. “Intellectual” good faith may
consist either of a “passive” ignorance in a state of affairs, or of an “active”
erroneous behaviour. The ignorance phase is especially relevant in the field of
property, while erroneous behaviour is found most commonly in persons.
Beginning with the basic division of the notion into two parts –
“Intentional” good faith may be distinguished as between honesty and
loyalty required in the execution of contracts; honesty and loyalty required in
the exercise of rights; and the sense of equity that the judge must employ in
the interpretation of contracts. These are the three roles which “intentional”
good faith performs.
Chapter I
“INTELLECTUAL” GOOD FAITH
1. FUNCTIONs Ox “INTELLECTUAL” GOOD FAITH
The “intellectual” notion of good faith might be termed as good faith in
the strict legal connotation of the phrase. Unlike the moral popular good faith
(the intentional notion), the law demands certain specific requirements before
*B.A., B.C.L. This article is a condensation by the author of his third-year essay, which won the
Arnold Wainwright Prize for the best essay on the civil law topic. Mr. Rosenberg is presently
continuing his studies in France.
No. 1]
NOTION OF GOOD FAITH
one can avail himself of this good faith. Its foundation, however, is still rooted
in the popular sense of the notion, and its goal is equity.
The notion of good faith here plays the role of a protector. It protects
those who act in error or those who suffer because of their ignorance. As long
as a person sincerely believes that he conforms to the law, the law must treat
him with indulgence if his actions should turn out to be misguided.
More specifically, in the law of persons the “intellectual” notion serves to
protect the consorts, for example, whose marriage is annulled because one of
them erred as to the formalities or substance of the marriage. If the error is
genuine –
the marriage is declared
putative and bears all civil effects as if it had been valid. Similarly, in the law
of property, a person who possesses land by virtue of a defective title for a
certain period of years will be protected from revendication by the owner if
he had been truly ignorant of the defects in his title.
i.e. if the parties were in good faith –
2
PASSIVE STATE EXPLAINED
The major area where this particular sense of good faith applies is that of
the good faith possessor both as regards acquisitive prescription, and the
acquisition of fruits by accession. Before examining the specific and practical
role that good faith plays in this area, it is first advisable to survey some of
the general principles which apply to this passive sense of good faith in
prescription and accession.
One is confronted here with a legal phenomenon in which a certain state
of mind on part of a possessor results in the protection of his possession, or at
least of some rights in it. In most cases, the possessor has done nothing to
acquire this state of mind, outside of the physical fact of “‘possessing”; he
committed no positive act in order to achieve this state of mind. It is simply
there. He is in it. Hence I have termed this as the passive aspect of
“‘intellectual” good faith.
What precisely is this state of mind? To put it simply, it is a state of
ignorance of certain facts. It is a lack of knowledge on the part of the possessor
that there is some defect in his right to the possession. Viewed conversely, it is
in fact his belief that he is not a mere possessor, but rather the rightful owner
of his possession. It is a state of mind which will not give rise to any questions
or doubts as to his right of ownership. It is the normal state of affairs.
Being a juridical notion, however, this ignorance demands some precise
r-quirements in order Lhat it constitute good faith. While it is fairly simple to
outline some theoretical requirements,
their practical application is much
more difficult. Any state of mind is difficult to examine objectively.
It is
subjective and internal and external acts are usually not much help in indicating
exactly what was their author’s intention.
MCGILL LAW JOURNAL
[Vol. 7
3. THE DEGREE OF CERTAINTY
How certain must one’s belief be in order that he may be in good faith?
What, if anything, must one do to ascertain whether his belief is correct?
These are two very important and difficult questions which must be answered
before a possessor can claim good faith by virtue of his ignorance.
Obviously, they must be decided according to the facts and circumstances of
each individual case. In the final analysis, it is the judge who must use his
discretion to decide whether a person truly believed in the validity of his
title, or whether he purposely avoided searching for proof of its validity. Yet
some general principles may be drawn as to the type and extent of ignorance
required to satisfy good faith.
Modern opinions compromise between an extreme degree of, certainty’, and
one which allows every type of negligence to serve as a basis for good faith.
Joron requires the possessor to show some “alertness” at discerning whether or
not his right is free of defects. Tetreault comes closest to defining the limits
of certainty and the excusability of ignorance in his following definition:
“Une certitude morale appuy6e sur un jugement relativement prudent mais non
6clair . “2 The judgment must be “‘relatively prudent”; i.e. it must be
interpreted according to the intellectual development of the person in question.
In his conscience, the person must be morally certain that his judgment leads
to a belief in his right of possession. But Tetreault adds that to require every
person to do his utmost to discover the real truth is to carry things too far.
There is hardly a good faith which could stand such serious examination3
Finally Terreault concludes that because of the relativity of good faith, there
can be no absolute or empirical principle which can be applied to defining the
exact measure of the amount of certitude or ignorance necessary for good
faith.4
The courts of Quebec on the whole have similarly shown a tendency to
compromise and require only a reasonable amount of ignorance. There is a
case, however, which goes so far as to maintain that a person who is actually
duped into ignorance by his notary cannot claim such ignorance as a basis for
good faith because he should have been more careful in choosing his notaryA
Most judges, however, simply require that the conduct of the person
claiming good faith “be consistent with common honesty.-6 Mignault J. in
the Supreme Court Case of Grossman v. Barrett7, in discussing the presence of
UJoron, U. Prescription, Bonne foi et Enregistrement, 37 R. de N. 109, at p. 111.
2Tetreault, S., Une Definition e la Bonne Foi, 37 R. de N. 222.
31bid., pp. 225-227.
4Terreault, Prescription, Enregistrrement, Bonne Foi, 34 R. dc N. 466, at p. 470.
rRoberge v. Bergeron (1940) 69 K.B. 533, at p. 535; sec also dissent of Taschereau J. in St. Lawrence
Terminal v. Halle 39 S.C.R. 47, at p. 53.
‘Herbert v. Fennel (1863) 13 L.C.R. 385, at p. 387.
7[1926] 1 D.L.R. 257.
No. 1]
NOTION OF GOOD FAITH
good faith in a subsequent purchaser of a car, held that, “Good faith does not
need to be unefoi iclatante, it suffices that it be an honest belief that the vendor
is the owner of the thing sold. Nor if there be an error on the part of the
purchaser is it necessary that the error be invincible.” 8 As Dorion J. pointed
out in a Court of Appeal decision: “Le Code ne cr& pas de prisomption lkgale
au point de vue de la bonne foi, il ne fait pas de distinction entre l’ignorance
invincible et l’ignorance”. 9 Negligence, moreover, may give rise to good
faith.10
Other cases refer to good faith as “la croyance pleine et enti&re” in the
valid title of the author of the acquirer”: or, a more firm and positive require-
ment: “La conviction, d&oulant de l’ignorance de tout droit contraire, qu’a
l’acqureur que son titre lui confute, sans contestation possible, la propriftE de
l’immeuble qu’il a achetW”.1 2
Last there is the question of doubt. It can be seen readily that all the above
definitions imply that doubt is exclusive of good faith. In requiring certainty
of belief to satisfy good faith, they in fact assimilate doubt to bad faith.”1
Some authors, however, do draw distinctions regarding the effect of doubt.
Their distinctions depend on the subject of the doubt, and the time of the
doubt. Thus where doubt is a simple incertitude whether an object belongs
to a possessor, such doubt is not sufficient to vitiate good faith. But a possessor
must still be certain and without any doubt that he actually acquired the object
from its owner. 4
Where, then, in the positive provisions of the law are these principles of
the passive sense of “intellectual” good faith applied? The next two chapters on
acquisitive prescription and accession of fruits serve to answer this question.
Chapter II
PRESCRIPTION
1. THE GENERAL RULE OF PRESCRIPTION
Both the French and the Quebec Codes as a general rule do not require
good faith for the purposes of prescription. Art. 2242 C.C. states:
All things, rights and actions the prescription of which is not regulated otherwise by law,
are prescribed by thirty )ears, without the party prescribing being bound to produce any title,
and notwithstanding any exception pleading bad faith.
Slbid., at p. 264.
9Guay v. Thomas (1926) 41 K.B. 451, at p. 458.
“Brims v. Broun (1908) 34 S.C. 272, at p. 281.
“Chaurin v. Laramke (1940) 46 R.L.n.s. 501.
‘St-Pierre v. Boqer (1918) 57 S.C. 112.
“See: Asselin v. .resque (1913) 19 L.C.J. 72, at p. 77; Roberge v. Berteron, supra, at p. 533; “Consider-
ing that doubt is destructive of good faith.”
I’See also: Chinic Hardware Co. r. Laurent (1895) 1 R. de J. 278: in certain instances there may be
un moyen terme pour les cas ou if n’y a pr&isiment ni bonne foi, ni mauvaise foi.” (at p. 287.)
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[Vol. 7
Laurent objects to the similar provision in the French Code as in his opinion
it tends to sanction bad faith.”5 He points out the Canon Law refused to allow
this and required good faith in all kinds of prescriptions. Undoubtedly the
fact that in Canon Law bad faith was considered a capital sin contributed to
this requirement. He admits that, both in Roman Law and the Coutume,
good faith was not needed for thirty-years prescription, but he holds that the
reasons 16 for this provision are not valid. His main objection is a moral one:
“Sans doute le domaine du droit n’est pas celui de la morale, mais cela ne veut
pas dire que la loi doive encourager er r&ompenser l’immoralit6.-17
This view seems to be somewhat of an exaggeration resulting in all likeli-
hood from a religious influence. The basis of good faith is that of equity, and
while morality is undoubtedly the most important factor and unit of this
equity, social expediency must sometimes supercede morality if the law is to
carry out its function as an institution for ordering human relations.
2. TEN-YEAR PRESCRIPTION BY SUBSEQUENT AcQUIRERS
Exceptionally, the Code demands good faith as one of the basic requirements
necessary to prescribe moveables or immoveables acquired through translative
title. Good faith –
the “intellectual-passive-ignorance” phase of good faith
is the heart of ten-year prescription (twenty years in case of absentees) by
–
subsequent purchasers.
As regards immoveables the Code states (art. 2251 C.C.):
He who acquires a corporeal immoveable in good faith under a translatory title, prescribes
the ownership thereof and liberates himself from the servitudes, charges and hypothecs upon
it by an effective possession in virtue of such title during ten years.
Thus, prior to the ten-year possession, the acquisition itself must be in
good faith.”‘
Much litigation has arisen in the Quebec courts regarding the provision
of art. 2251 C.C. enabling a possessor to liberate himself from all the charges
on the land. With respect to hypothecs, the question presents itself whether an
acquirer whose land is burdened with a hypothec may still prescribe the land
through ten-year possession. In an early case of Kaigle v. Pierce,’9 the Quebec
Court of Appeal held that knowledge by a donee of such a hypothec on the
object of the donation is not a bar to prescription. Eight years later, however,
the same court came to a different conclusion on similar facts although this
15Laurent, F., Principts de Droit Civil, v. 32; no. 369.
‘t Both Rome and the Coutume considered good faith and title as correlative terms. Hence since
title is not required neither should good faith be. Moreover in thirty-years prescription proof of
good faith becomes a difficult matter.
171bid.
‘8″ce n’est pas i la possession, mais 1 l’acquisition que la bonne foi doit s’ajouter.” Lamarre v.
C&I (1928) 45 K.B. 245, at p. 251.
9(1870) 15 L.C.J. 227.
No. 1]
NOTION OF GOOD FAITH
time a sale, and not a donation, transferred the immoveable. 20 The question
seemed to have been settled by the Supreme Court of Canada in 1893,21 where
it was held that proof of actual knowledge of existence of a registered hypothec
was sufficient to rebut the presumption of good faith. This decision was, never-
theless, distinguished in a later Quebec Superior Court case, which held that
knowledge of a hypothec was not a bar to good faith if such hypothec was
renounced by the vendor. 22 The Supreme Court decision, however, was fol-
lowed in an even later case also in Superior Court. 23
It would seem, then, that Supreme Court case correctly states the law, and
that actual (not presumed) knowledge of a hypothec will prove a bar to good
faith necessary for prescription.
The only place in the entire Civil Code where good faith is defined is in
the chapter dealing with accession of fruits. Art. 412 C.C. reads:
A possessor is in good faith when he possesses in virtue of a title the defects of which, as
well as the happening of the resolutory cause which puts an end to it, are unknown to him.
Such good faith ceases only from the moment that these defects or the resolutory cause are
made known to him by proceedings at law.
There arises the question, then, what application does this definition have
in respect to the good faith mentioned in art. 2251 C.C.
Mignault in discussing the good faith required in this prescription applies
directly the definition of art. 412 C.C.24 Rodys agrees with him, and points out
that it would be illogical to think that the Code would create two different
notions of a possessor in good faith.2 5 This argument of logic is rather weak
since there is really nothing inherently illogical about two different notions
of good faith. As was pointed out above, good faith takes on different aspects
throughout our law.
Joron disagrees with Mignaut and Rodys.26 He maintains- that the defini-
tion of art. 412 C.C. applies only to the good faith required in accession of
fruits by a possessor. For main support of his argument, Joron relies on the
fact that some of the authorities cited by the Codifiers in connection with
art. 412 C.C. emphasize the distinction between the good faith required in
fruits and that necessary for prescription. Marcad&, especially, draws that
distinction. 2
1
On reading the articles, the plain meaning of the words does seem to suggest
a difference between the two requirements of good faith. Art. 2251 C.C. re-
20BIain v. Vautrin (1878) 23 L.C.J. 81.
21Bakr v. La Socilti de Contruction M2tropoliraine 22 S.C.RL 364.
“Desjardins v. Giboxdema (1927) 35 R.L.n.s. 411; at p. 420.
t Chauvin v. Laramie, supra.
2’Mignault, P. B., Le Droit Civil Canadien: v. 9, p. 502.
2Rodys, W., Traiti de Droit Civil du Quibec, (Trudel Series) v. 15, p. 98.
26Joron, p. 116.
2TMarcad6, V., Explication d Code Napolion; v. 2, under article 550 C.N.
McGILL LAW JOURNAL
[Vol. 7
quires that good faith be present in a person who “acquires” an immoveable;
i.e. the act of acquisition must be executed in good faith. Art. 412 C.C., on the
other hand, talks of a “possessor” in good faith; i.e. the possession itself must
be in good faith. Quite obviously one could acquire something in good faith,
and if he should happen to find out some time later that there is a defect in
his title, his possession will be in bad faith although his “acquisition” would
still be considered in good faith. Thus it would seem that the only manner in
which one could apply the definition of art. 412 C.C. to the good faith required
in art. 2251 C.C. would be to maintain that the good faith in possession and
the good faith in acquisition are one and the same. Most authorities and
writers do, in fact, hold that this is so.28
Some of the differences and similarities between the notion of good faith
in accession of fruits and that notion in prescription will be further examined
in the discussion of the next two topics: the requirement and relation of “title”
to good faith; and the question of time and duration of good faith.
3. TITLE AND GOOD FAITH
“He who acquires a corporeal immoveable in good faith under a translatory
. .”, reads art. 2251 C.C. in part. A title, then, is a requirement for ten-
title .
years prescription.
The question of title in prescription is a subject in itself, but what speci-
fically interests us here is the exact relationship between this title and good
faith. Are they merely two separate requirements necessary for prescription?
Or rather, is the existence of a title merely an element of proof of good faith?
Laurent points out 29 that under the Ancien Droit, a just or translatory
title was simply an element of good faith, but the Code Napolon requires
title translative of property as a separate condition from good faith in prescrip-
tion. Laurent, however, is not in agreement with this proposition put forth
by the French Code. He goes on to say that good faith itself must be based
on a title. If the possessor knows that his author had no title, then there can
be no good faith. Laurent simply cannot visualize that a person may have a
translatory title and yet be in bad faith. Yet this anomalous situation arises,
he argues, if one separates the requirement of good faith from that of title.
As an example of this anomaly he describes the case where the possessor believes
that the title of his author is valid, but knows that his own title is not because
of his own incapacity. If we separate good faith and title, as the French Code
does, then the possessor in this example possesses by virtue of a translatory
title, and yet he is in bad faith. If, on the other hand, we consider title as
merely an element of good faith –
then the possessor
according to Laurent –
2 8For explicit application of the definition of art. 412 C.C. to prescription, see: Lariviere v. La Citi
de Montreal (1925) 63 S.C. 39S, at p. 402.
“2Laurent, v. 32, no. 406.
No. 1]
NOTION OF GOOD FAITH
possesses by virtue of a translatory title and consequently must be automatically
in good faith. The latter proposition, concludes Laurent, is the more realistic
of the two. 0
Riou also maintains that a translatory title is a condition of good faith:
“La bonne foi du possesseur, c’est de se croire propriftaire. I1 ne peut pas avoir
31 In
cette croyance, s’il n’a qu’un titre prcaire, non translatif de proprift.
other words, even if one believes that he is possessing in virtue of a valid title”
and thereby believes himself to be owner, he is still not in good faith if his
belief is mistaken and his title is, in fact, not a translative one. A putative title
cannot serve as a basis for good faith. In view of what has been said up to now
regarding the “intellectual” notion of good faith, this does not seem to be
sound. The “intellectual notion” of good faith is based solely on one’s belief
and state of mind. It is precisely when the title is not a valid one that good
faith enters the picture and comes to the aid of a person in a state of ignorance.
The only justification for Riou’s statement is that good faith and title are two
separate requisites for prescription.
Such a view is held by many modern writers.32 Rodys holds that the two
must be separated since “la bonne foi n’a trait qu’A la croyance dans les droits
de I’ali6nateur”.33 Mayrand goes even as far as to say that a title fraught with
violence may still be translative and if its acquirer is also in gocd faith, then
the requirements for prescription exist. 34
It would certainly seem to be reasonable to interpret art. 412 C.C. to include
a translatory title as one of the elements of good faith: “A possessor is in good
In other words, to he in good
faith when he possesses in virtue of a title, etc.”
faith, one must first of all have a title. On the’other hand, the words of art.
2251 C.C. will not be stretched from their natural meaning, if one were to read
the article as requiring two separate conditions for prescription: a) good faith;
b) translatory title. The meaning of the article would not be changed at all
if the word “and” had been inserted between “good faith” and “under a
translatory title” .5 If this analysis is correct, then it is only logical to assume
that those authors which hold that title is an element of good faith in prescrip-
tion (art. 2251 C.C.) support the view that the definition of art. 412 C.C.
applies to prescriptive good faith; while the others, who maintain that good
301bid., no. 410.
3 Riou S.C., La Possession et la Bonne Foi, [1927-8] R. de D. 33 at p. 35; for other authors with the
same view, see: Demolombe, C., Traite de la Distinction ,e Biens, v. 1, p. 540; DalIoz, Ripertoire Pratique,
v. 9, no. 162.
n2e.g. Josserand and Aubry et Rau –
for citation see: Mayrand, A., Bonne Foi et Prescription par
Tiers Acquereurs (1942 2 R. de B. 9, at p. 16.
3Rodys, W., p. 99.
34Mayrand, p. 17.
KThis is the wording of art. 2253 C.C..
… with title and in good faith …
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faith and title are separate elements, do not support that proposition. If the
latter view is accepted then one is faced with a basic difference between good
faith in accession of fruits, and good faith in prescription: in fruits, according
to art. 412 C.C., good faith (i.e. lack of knowledge of defects) must apply to
one’s own title, and a fortiori to the author’s title; in prescription, however,
good faith is necessary only in respect to the author’s title. It would seem that
this view is entirely consistent with the difference in the wording between
art. 412 C.C. and art. 2251 C.C. The former article talks of good faith as being
necessary during one’s possession. Art. 2251 C.C. on the other hand, requires
good faith in respect to the acquisition of the immoveable.
4. TIME AND DURATION OF GOOD FAITH
When must good faith appear, and for what duration must it last in order
to enable an acquirer to prescribe in ten years? Art. 2253 makes this point clear:
It is sufficient that the good faith of subsequent purchasers existed at the time of the
purchase, even when their effective possession only commenced later. (art. 2253 C.C. in part)
Thus good faith need only exist at the time of acquisition. It is not necessary
that it subsist thereafter.
Art. 2269 of the French Code contains a similar provision, and nearly all
modern writers, both French and Canadian, agree that there is no need for good
faith to last past the moment of acquisitiona 6 Beaubien, a pre-codification
Quebec author, however, holds the isolated view that good faith is needed
throughout prescription, and not only at the beginning. It is presumed to
exist throughout. 37
While Laurent agrees that the French Code does not demand good faith
throughout the prescriptive period, he questions the logic and justice of this
provision much in the same manner in which he objects to the lack of require-
ment of good faith in thirty-year prescriptions. He points out that under
Canon Law, good faith was required throughout, and maintains that this is
better law than that of the Code. Good faith is “l’me de la prescription”,
and consequently to dispense with it after the moment of acquisition is
arbitrary, contradictory, and incoherent. “C’est dire que la loi doit 6tre plus
indulgente que la morale.” 38 But is not this precisely the case? Law, for the
sake of social expediency, often must be more indulgent than morality. Yet
Laurent goes so far as to say that here, in fact, the Code is favouring bad faith.
5French: Mazeaud, Leons de Droit Civil, v. 2, no. 1500: “Mala fides superveniens non impedit
usucapionem.” Quebec: Mignault, v. 9, p. 502; Challics, G., Prescription A, Subsequent Purbasers,
(1937-38) 16R. de D. 464, at p.468. See also: LUpage v. Chatier(1866) 11 L.C.J. 29, at p. 34; Primaau
Gurin (1885) 30 L.C.J. 21; Lamarre v. Cdti, supra.
37Beaubien, Traiti sur les Lois Civils du Bas-canada, v. 3, p. 288.
3SLaurent, v. 32, no. 416.
No. 1]
I submit that this is an exaggeration. To favour social expediency is not
necessarily equivalent to immoral favouring of bad faith.
NOTION OF GOOD FAITH
In this connection it is interesting to note what the Quebec Codifiers in
their Report stated regarding art. 2253 C.C. They maintain that the provision
requiring good faith to exist only at the time of acquisition is not a change in
the law. It is so “‘not only because the equity of such a protection had caused
it to gain much ground under the old French jurisprudence, but also because such
is the spirit and even the letter of our statutory law.” 3 9 In what would seem
to be a direct answer to Laurent’s objection, the Codifiers add that since “bad
faith in the legal sense is inferred from the knowledge of the right of another,
there is no immorality nor injustice in enacting that the purchaser shall not
suffer from a knowledge subsequently obtained.” 40 Their reasoning in support
of this view, moreover, is quite sound. The acquirer assumes his obligation of
paying the price at the time of acquisition, and “at that moment he expects that
ten-year possession will secure for him the discharge from the right which he
has neither consented to nor has known; he ought not to be deceived in this
expectation.” 41
In contrast to art. 2251 C.C., it is the essence of the good faith required in
the accession of fruits (art. 412 C.C.) that here a possessor gains the fruits only
as long as his possession is in good faith – until the “defects or the resolutory
In other words, where one acquires an im-
cause are made known to him.”
moveable in good faith and sometime later becomes aware of defects in his
title, he may keep only the fruits he had gained in the period between the
acquisition and the moment he became aware of the vices in his title.
Thus again, one is faced with a basic difference between the good faith
required in prescription and that needed for accession of fruits. Once more it
may be pointed out that this difference is entirely consistent with the wording
of art. 2251 C.C. and art. 412 C.C.: the one talking of good faith as regards the
acquirer, the other in respect to the possessor. Finally, it should be noted that
the Code in art. 2193 C.C. deals with the requirements of possession without
specifically mentioning good faith. Since the chapter on possession containing
art. 2193 C.C. is included in the title on prescription, it is only logical to assume
that this definition applies to the ten-year possession needed to prescribe
according to art. 2251 C.C. This lack of good faith in possession for the
purpose of prescription is in accord with the provision of art. 2253 C.C., and
underscores further the difference between the good faith required here, and
that necessary for the accession of fruits.
39Third Report, p. 433.
4Dlbid.
4lIbid. For a similar statement see also: Beaudouin, P., Pescription (1895) 1 R.L.n.s. 143, at p. 147:
“il n’y a ni immoralit ni injustice A cc que l’acqu&eur ne souffre pas dc cette connaissance survenue
apras coup.”
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[Vol. 7
5. THE PRESUMPTION OF GOOD FAiTH
Art. 2202 C.C. states that “Good faith is always presumed. He who
alleges bad faith must prove it.” This, as a statement of law, is clear and direct.
It appears in the Title of Prescription in the Code, and therefore applies to the
good faith required in art. 2251 C.C. But the generality of the statement
arouses the question whether or not it is meant to apply to all instances where
good faith is mentioned in the Code.
The Codifiers in their Report seem to indicate that this was their intention.
Commenting on their amendment which resulted in our present day art. 2202
(the old article read: “Good faith is always presumed when possession accom-
panies title. He who alleges bad faith must prove it in all cases”4”), they state
that the new article declares “‘in a less doubtful form a simple and fair principle
the generalization whereof will be found consonant with the whole of the new
doctrine.’ 4
Most authors hold that this presumption is in fact a general one and applies
outside of prescription. 44 It is of course only a presumption juris tanitm and
may be rebutted by any mode of proof, including a contrary presumption.
Some exceptions, do, however, exist to this presumption. Where error of
law serves as a basis of good faith rather than error of fact, the person claiming
good faith must prove it.s A second exception exists in the case of putative
marriage. 4s Here the consort claiming that he contracted the marriage in good
faith, must prove this good faith.4 7
Finally, it is not unreasonable to point out that the generality of the
presumption is entirely consistent with the Code as a whole. In the spirit of our
law the general principle of good faith is of the essence, and much in the same
way as in criminal law where every person is deemed innocent until found guilty,
so too in civil law, every person is considered to be in good faith until proven
otherwise. In practice, however, the presumption often does not mean a great
deal since any slight proof of bad faith usually suffices to shift the burden upon
the person claiming good faith to establish it. This comparative ease with
which one may establish bad faith results from the strict requirements which
the law demands before a person comes within the definition of legal good faith.
12Third Report; p. 517.
qhird Report; p. 417. (underlining by author).
44See for example: Laurent, v. 6, p. 299; Mlignault, v. 9, p. 381. Jurisprudence is in agreement
with one exception (Ellice v. Courtemanche (1867) 17 L.C.R. 433). This decision was rendered after
the Civil Code came our since it discusses articles of the Code. Yet Badglcy J. held: “It may be
observed that the objection of bad faith is not one required to be proved by the land-owner, and
that in principle the onus of proof is necessarily cast upon the squatter, the occupant, who is bound
to prove his good faith.” (at p. 439) It is submitted that perhaps the learned judge had not as yet
had sufficient time to peruse the entire Code.
45Laurent, v. 32, no. 415.
4 See below, Chapter IV.
47See: Moentmign; r. Lelictre (1939, 67 K.B. 197, at p. 205; Gauvin v. Rancourt [1953] R.L. 517.
No. 1]
NOTION OF GOOD FAITH
Chapter III
“INTELLECTUAL” GOOD FAITH
AS AN ACTIVE ERRONEOUS JUDGMENT
1. THE RELATIONSHIP OF ERROR AND GOOD FAITH
Error as a cause of nullity of contracts in our Code has a rather technical
meaning and function. Where one of the contracting parties errs either as to
the nature of the contract, or as to the substance of the object of the contract,
or as to the principal consideration for making the contract, such error serves
to annul the contract (art. 992 C.C.). Above it was pointed out that error
results in good faith.
Is that the same error which the Code mentions in
art. 992 C.C.?
Basically, good faith is error in the technical sense of the Code, but from
a different aspect. The technical sense of error nullifies more or less completely
an act which – had the parties acted without this error – would have been
valid. The “good faith” sense of error, on the other hand, does not nullify,
but rather gives him who errs the advantages he would have had from his act
had he not, in fact, erred. 4b
Thus error leading to nullity is more truly an objective manifestation, a
defect leading to the vitiation of consent. Good faith, on the other hand, is
the subjective error in our minds which led us to commit the objective error
(defect) in the nature, substance, or consideration of the contract.
In its effect, technical error is destructive –
all rights are lost. Good faith,
however, in its effect is constructive; it mitigates the “destruction” in favour
of the party who erred “sincerely”. 49
2. EXCUSABILITY OF ERROR
Gorphe maintains that every error in good faith merits protection whether
the party in error be the victim of another, of circumstances, or of himself.5
This would seem to include every type of error conceivable. Is this valid? Are
there no limitations as to what type of error can serve as a basis for good faith?
In other words are some errors not excusable and consequently not a valid
foundation for good faith?
It would seem to be perfectly in order to allow every type of error what-
soever, where such error is attributable to the fault of the other party, or to the
fault of a third person. The problem, however, arises with respect to error
attributable to oneself.
In the first place, it must obviously be genuine error. One cannot claim good
faith through error where such error is committed intentionally, or even where
I8Millte, J. E., Dt l’Erreur et de la Bonne Foi, p. 92.
4gLyon-Caen, M. G., Dr I’Eroeution de In Notion ,ci Bonne Foi, (1946) 44 Rev. Trim. 75, at p. 99.
“Gorphe, F., Le Principe tie la Bonne Fci, p. 115.
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one had some doubts upon the validity of his act prior to acting. To admit of
good faith in such cases would be to contradict directly the spirit of the notion
of good faith.
On the other hand, where one acts wrongly, but under a genuine belief that
he is acting in a correct manner, good faith is there to protect him and to allow
him to benefit from his act. It is here that good faith comes to the aid of him
who is morally right, but intellectually wrong.
There remains the question of negligence. If one commits error because of
his own negligence, should such error serve as a basis for good faith? If such
negligence is ordinary there seems to be no reason why the error here should not
be excusable. Following the principle stated above, a person may be negligent
and yet act morally. Negligence is a failing of his intellect and consequently he
should be protected. There is some disagreement in the case of gross negligence.
Where such negligence is clearly only that, and there is no evidence that the
person was aware of his error or negligence, then it would seem that good faith
should still come to his protection. Here there is only a difference in degree
from ordinary negligence. But where such gross negligence amounts to inten-
tion, or where it harms innocent parties, such negligence cannot be considered
as excusable error, and good faith cannot result.
It must always be remembered that while error is the basis of good faith,
its function, nevertheless, is not there to encourage negligence or imprudence.
It is a moral rule, and as such must always be construed so that its application
will result in the greatest moral benefit possible for all concerned.
Chapter IV
PUTATIVE MARRIAGE
1. INTRODUCTION
It is in the field of persons that the active phase “intellectual” good faith
plays its most important role. A genuine error on the part of either of the con-
sorts in a marriage will benefit the erring consort with the full civil effects of
the marriage even though the marriage has been annulled. This is the doctrine
of putative marriage.
One is faced here with the classic example of the role that good faith plays
in mitigating the effects of the nullity. “Nous sommes ici dans Ic domaine
exclusif de l’quit6 qui transforme un acte nul en fait juridique g~n~rateur
d’effets civils.”
It is immaterial what error consists in. Good faith here extends to every
cause of nullity no matter how serious –
relative, absolute, “ou meme d’une
soi-disant inexistence”. 51 If one of the consorts was genuinely in error, he
receives all the benefits of a putative marriage. The error may be of fact or law.
5’Baudouin, L., Le Drait Civil de la Provint de Qmubec, p. 194.
N.1]
NOTION OF GOOD FAITH
2. REqum mENTs FOR GOOD FAITH
The Ancien Droit exacted three conditions for putative marriage. There
had to be good faith. Secondly, some formality was necessary. Thirdly, the
error had to be excusable.52 To-day, however, both the French and Quebec
Codes require only good faith. In point of fact, the latter two conditions are
really part of good faith. 3
As far as the excusability of error is concerned, there is really no doubt that
this is included in good faith. The question here is rather exactly what is
excusable error.5 4 As was mentioned in the foregoing, practically every type
of error is permitted as long as it is genuine error stemming from ignorance
on part of the consorts. Thus where a wife knew of an impediment caused
by a blood relationship between herself and her husband, but believed “sans
aucun doute” that a dispensation which she received from a priest wiped out
this impediment, her error in marrying was held to be excusable. 5
On the question of the necessity of celebration formality in order to enable
one to avail himself of good faith there exists a mild controversy.
While some authorities hold that the requirement of good faith presupposes
that the marriage was solemnized with some formality,56 the majority demand
no such requirement. 57 Both the French and Quebec Codes speak of a marriage
“contracted” in good faith, not “‘celebrated” in good faith. A contract (here
the marriage itself, rather than the marriage contract proper) does not require
a formality for its existence. Hence no formality of celebration is required as
a prerequisite to good faith in putative marriage.
Thus, in the final analysis, whether or not one adopts the three conditions
as the elements necessary for putative marriage makes very little difference.
For all intents and purposes it is good faith, and good faith alone, which trans-
forms a null marriage into a putative one.
Good faith exacted in putative marriage presents us with what is the clas-
sical example of the subjectivism of the “intellectual” notion of good faith.
As in all other cases where a judge must rule on good faith, his discretion and
careful consideration of the facts and circumstances are of prime importance.
In marriage, moreover, this factor is of even greater significance. The Code
does not define good faith in connection with putative marriage as it does in
the case of property. It is true that in property the definition of good faith in
art. 2251 C.C. is also not given, but the definition of art. 412 C.C. does provide
at least a help in understanding the good faith of prescription even if one is not
6″Fuzier-Herman, Riptroire, v. 2, no. 583.
53Toullier, Droit Civil Franpais, v. 1, nos. 655-6.
“4See above, Excurability of Error.
&uGilbert v. Gilbert, (1929) 35 R.L. n.s. 289, at p. 294.
“Dalloz, Code Annoti, v. 1, no. 436.
7Demolombe, Marage, v. 3, p. 554; Trudel, v. 1, p. 464, Baudouin, L., p. 194.
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willing to use the definition of art. 412 C.C. interchangeably. There is, after
all, much in common between the possession for the purpose of prescribing an
immoveable and that required for accession of fruits.
It is, however, much more difficult to apply this definition to the good faith
of art. 163 C.C., and 164 C.C. Here there is a question of persons, and the
strict legal requirements of good faith in fruits often do not exist in marriage,
It is because of this that the notion of good faith is here much more sub-
jective than it is in property. The judge must take into consideration the social
position, the degree of intelligence and instruction, and all the other circum-
stances before he can decide whether or not good faith exists. Thus, for exam-
ple, it was pointed out in Berthiaume v. Dastous8 that the error in law on the
part of the wife was excusable because she was very young and consequently
” quite ignorant of the law”.59
3. DURATION AND PRESUMPTION OF GOOD FAITH
A marriage will produce its civil effects “if contracted in good faith”.
The provision is similar in the French Code. From the plain meaning of the
article, it is clear then that the good faith need exist only at the beginning of
the marriage – at the time of contracting. A marriage once putative is always
putative. 60
Putative marriage is the one big exception to the generality of the presump-
tion of good faith contained in art. 2202 C.C. Once the marriage is annulled,
the consort who wishes to benefit from its civil effects must prove that he was
in good faith. 61
Chapter V
“INTENTIONAL” GOOD FAITH
1.
INTRODUCTION
In the preceding pages the role and importance of morality in the law
were pointed out, and it was emphasized that of all the juridical notions good
faith was, perhaps, the principal vehicle which served to carry ethical-moral
notions into the positive law. Out of all the various aspects of good faith, it
is in the “intentional” notion of good faith that one is most aware of this
function. It is one of the most basic and fundamental concepts in the field of
obligations in our law.
The “intellectual” notion of good faith was divided into two phases on the
a passive
basis of two seemingly different senses or forms of good faith –
5s[1930_ A.C. 79.
391bid., at p. 87.
9 0Gallardo, R., L’Institution du Mariale Putatif, p. 184. Trudel, v. 1, p. 463.
6’See cases cited under presumption of art. 2202 C.C.; stpra, note 47.
No. 1]
NOTION OF GOOD FAITH
sense, and an active sense. “Intentional” good faith may also be subdivided.
Here, however, the distinction lies in the function and role which good faith
plays rather than in its form. To put it simply, good faith here can best be
characterized as an absence of malicious intention; or, positively, as the
intention to act honourably and loyally. This one sense-or form of good faith,
however, plays three different roles: in the execution of contracts; in the exercise
of rights; and in the interpretation of contracts.
Chapter VI
EXECUTION OF CONTRACTS – PAULIAN ACTION
The classic example in the Code of the “intentional” good faith required
in the execution of contracts is the provisions for Paulian action contained in
arts. 1032-1040 C.C. Of special relevance to our topic is art. 1033: “A contract
cannot be avoided unless it is made by the debtor with intent to defraud, and
will have the effect of injuring the creditor”. In order to impeach the acts of
his debtor, the creditor must prove intent to defraud on part of the former.
In other words, he must show lack of “intentional” good faith.
The provisions in the French Code regarding Paulian action are much less
specific than those of our Code. As against eight articles in the Civil Code,
the Code Napoleon contains barely one general article (1167 C.N.). The French
jurisprudence, nevertheless, has evolved a doctrine on this action almost iden-
tical to that of Quebec. Hence we may safely examine French authorities on
this subject.
1. THEORY
The action is primarily meant for the protection of a creditor. It enables
him to void a transaction carried out by his debtor with a third person in
If the creditor is
fraud of the rights of the creditor and to his prejudice.
successful in his action, the object of the transaction returns to the patrimony
of the debtor, and the creditor is then in a position to seize it in payment of
his debt once such debt becomes exigible.
Originally, in Roman times, the action was principally a delictual one.
Today, it still carries some of this delictual characteristic with it.12
Basically, this is a social law. The action “met un frein i la libert6 indivi-
duelle, quand, par son exercice et ses manifestations celle-ci fausse la balance
de la justice.””3
It is a manifestation wherein good faith acts to restrain
individual liberty for the sake of social liberty and order.
Moreover, it is an action based on equity not only because of social
considerations, but also because it is “6minemment moralistarice”. 64 As
VRipert, La Rgle Morale, p. 291.
1Trudel, v. 7, p. 437.
“Groub-r. L’Action Paulinne en Drait Civil Franfair Contemporain, p. 654.
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(VOL. 7
Ripert points out, in the final analysis it is the moral rule that governs the
Paulian action and decides between conflicting interests of the creditor –
representing personal credit and the conservation of patrimony – on the one
hand; and the acquirers –
representing real credit and free circulation of
property – on the other hand.”
2.
INTENT TO DEFRAUD
It is the requirement for proof of intention to defraud on part of the debtor
that interests us most in relation to the notion of good faith. For such proof
necessarily indicates an absence of “intentional” good faith.
Disposition of patrimony by a debtor, even if he is insolvent, is nor sufficient
grounds for Paulian action. There must be intent to defraud the creditor.
What comports such intent? What is regarded as bad faith or fraud?
Marcad6 considers fraud as “la connaissance qu’a le d~bireur de son insol-
vabilit6″.66 Fraud for Toullier means much the same thing. Where the debtor
knows of his insolvency and when despite this knowledge he alienates his
property, he is acting with an intent to defraud, even if in so doing he has no
actual intention of defrauding any particular person. 6 7 In other words, know-
ledge of insolvency plus alienation equals fraud. We are faced here, in fact,
with a presumption of bad faith which is created by proof of this particular
knowledge plus the act of alienation.
Mignault seems to shy away from this presumption when he states that
fraud here consists of knowledge that one is going to cause a prejudice to his
creditor.6 ” Simple knowledge of his insolvency is not sufficient. Rather, actual
i.e. to defraud – must be shown. Trudel seems to
intent to cause prejudice –
be more or less in agreement with Mignault, but his requirement for know-
l6dge is more general than that of the latter: “C’est la connaissancc de cetre
repercussion de son acte sur son patrimoine qui determine chez le d~biteur cette
intention de frauder.” 69 Conceivably knowledge of the repercussion includes
knowledge by the debtor of his insolvency as well as of the prejudice which
his alienation will cause to the creditor. Moreover, Trudel adds, to exonerate
himself, the debtor must prove not only that he was ignorant of his affairs,
but also that he did not know of his creditor, a rather stringent requirement.
A debtor is committing an act with intent to defraud when he enters into a
transaction favouring one creditor to the disadvantage of another and knowing
that he has not the money to pay the other. It was held in a recent Court of
Appeal decision that this was the definition of fraudulent intention.7 0
65Riperc, p. 293.
“Marcad6, v. 4. p. 403.
1″Toullicr. v. 6, p. 379.
“SMignault, v- 5, p. 289.
6I’rudcl, v. 7, p. 45S.
“n re Normandig- nh r. Do,,,inion .(tr: ctu / .teel 11959j Q.B. 14.
No. 1]
NOTION OF GOOD FAITH
It is the “mental attitude of the debtor that should be considered” in all
cases involving a Paulian action. 7’
Intention to defraud is presumed in a Paulian action because it is usually
difficult to prove, but not every act by the debtor can lead to such a presumption.
Thus, for example, an installment sale by an insolvent without mention being
made of his insolvency, does not necessarily presume his intent to defraud.7 2
Whether presumed or not, it is the intention to defraud or to cause prejudice
which is exacted by most authors before creditors can avail themselves of the
Paulian action. Where such intention exists, good faith is absent and a pre-
judiced creditor has full right to exploit the action. Where, on the other hand,
the debtor is able to prove lack of such intention (usually by showing both
lack of knowledge of his insolvency and of the fact that he intended to cause
prejudice to the creditor), his good faith will serve to protect him and the
creditor will be unable to annul the transaction between the debtor and a
third party. This holds regardless of whether the transaction is an onerous
one or gratuitous one, and regardless of how much prejudice the creditor may
suffer. 73
This seems, indeed, to be a high degree of protection, and may even appear
to be directly opposed to the purpose and raison d’tre of the Paulian action. If
so, it is again an indication of the high value that our law places on moral
intention as against social expediency. One, however, should keep in mind
that from a practical point of view, it is indeed difficult for an insolvent debtor
who performs a transaction with a third party to prove that he was aware of
his insolvency and intended to prejudice his creditor.
Chapter VII
EXERCISE OF RIGHTS – THE ABUSE OF RIGHTS
1. INTRODUCTION
Up to this point Part III has dealt with the function of “intentional” good
faith in the execution of contracts. This particular notion of good faith,
however, plays a second role. It is an extremely important concept in the
exercise of rights by the individual.
The notion of good faith in the exercise of rights leads us into the examina-
tion of the field of what is known today as abuse of rights. It is this field
which is primarily concerned with the absence or presence of good faith in the
exercise of rights.
7 Cadville v. Fraer 9 R.L. n.s. 246.
nConvey v. Renouf [1879] Q.L.R. 224, at p. 225.
73Contrast this with the good faith protecting third parties in their transactions, with the debtor.
Here they will be protccted only when the act is onerous. 1038 C.C.
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There is little agreement as to the exact definition of abuse of rights. It is
not the object of this paper, moreover, to examine this subject in detail. Rather
we are concerned here only with the role and the effect that good faith has in
this particular field of law.
Before discussing the theory of abuse of rights, however, it should be
pointed out that the discussion here will necessarily be based on the assumption
that abuse of rights is not merely another illustration of the general theory of
fault. If it is so, as some maintain, then good or bad faith is immaterial, and
one need only be concerned whether or not fault has been committed. On the
other hand, if we consider abuse of rights another illustration of the notion of
“intentional” good faith, then one must examine whether a person has exercised
his right in good or bad faith. If he has exercised it in good faith, he will be
exonerated; if in bad faith (i.e. if his intention is malicious), he will be respon-
sible in damages.
Thus, for example, where one prosecutes another for the simple reason of
causing him annoyance, his intention is malicious, and hence, not being in
good faith, he will be held liable in damages. Strictly speaking, the prosecuting
party has not contravened any positive provision of law. It is simply that he
has misused or abused such a provision. This final point must be kept firmly
in mind in discussing abuse of rights.
Abuse of rights comes into the picture only when one is exercising a right
which the law has granted him, but exercising it with the prime intention of
causing prejudice to another. Benefit to himself is only a secondary consider-
ation. In the case, however, where one causes prejudice to another through a
breach of an obligation – whether a contractual or delictual –
abuse of rights
plays no part whatsoever. This is rather a straightforward case of civil respon-
sibility and fault.
2. THEORY
The theory behind the concept of abuse of rights is perhaps the most forceful
example of the manner in which good faith injects morality into the law. We
have here a conflict between the positive provision of the law on one side, and
the moral notion that one must act with good intentions on the other. The
test for morality is the good or bad faith of the intention. It is the result of
this test that will prevail, to the extent that an adherence to the provision of
the law will not exonerate one who exercises that provision in bad faith.
We are thus faced with the fact that to follow strictly the letter of the law
is not sufficient in order to derive the full protection and benefits from the law.
The manner in which one follows the law is of as great importance. Morality
forces us to give up some of the absoluteness which is attached to our rights.
The right of ownership is absolute, but… And the “but” is always in favour
of the social well-being. We have, then, morality, leading us to a social end.
No. 1]
NOTION OF GOOD FAITH
In the definition of Gorphe, abuse of rights consists in using a right with
intention to injure; of using a right in an anti-social, immoral manner, and
not according to proper and normal use.7 4
Bad faith, or malicious intention, results here in a temporary transformation
of the right that is abused into a “non-right”. It ceases to be a right. “Celui
qui commet un dol n’use pas son droit, car il n’y a pas de droit contre la morale, et
la morale I laquelle nous croyons dMfend de nuire intentionnellement A autrui”. 75
This notion, in fact, is an advance over the old formula of objectivity where
only appearance and exterior elements were taken into account. 76 Here, rather,
we have a much more sophisticated and developed concept of a search into
man’s intention and a subsequent judgment based on morality as well as on
positive law.
3. THE INTENTION To HARM
Proof of intent to harm is a sine qua non to the proof of abuse of rights. Its
absence indicates good faith and hence absolution from responsibility.
Its
presence signifies bad faith and resultant liability. It is the intention which
renders the act an abuse –
l’esprit de malfaisance.
As was pointed out in the introduction, a person must actually be exercising
a right given to him by law before the doctrine of abuse of rights comes into
play. If he exercises such right with the principal aim of causing harm to an-
other, he is abusing it.
We are then employing a highly subjective and psychological criterion in
order to determine the presence or absence of good faith. It is the criterion
which is employed throughout the notion of “intentional” good faith: the
intention to cause harm.
The judge, however, at his best is not a mind reader. How then is he to
discover this intention? To solve this, an objective measuring stick has been
adopted by most authors and judges.
Ripert maintains that the test for malicious intention consists in ascertaining
whether or not the person accused of an abuse has profited by the exercise of
his right. If he has, then he has not abused his right regardless of how much
prejudice it has caused another.7 7 This is to say, in fact, that where there is
clear profit or utility in the action, the judge must not search further into the
psychological motives of the actor. While this test provides a relatively simple
and objective means of determining the presence of bad faith, it is not wholly
consistent with the theory of abuse of rights.,
There seems to be something morally amiss in a test whose criterion for
good faith is the presence of self-profit. If abuse of rights claims to search into
7’Gorphc; p. 102.
75Ripcrr, p. 172.
78Ibid.
77Ripert, p. 166.
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man’s motives in order to determine good faith, it does so rather superficially
if it stops once it has ascertained that a person has profited by his actions.
according to Ripert –
A person may quite well exercise a right with the intention to create harm
to another, and yet because such exercise has incidentally produced profit for
him, he will be held –
to exercise his right in good
faith. Would it not be far more consistent with the doctrine and with the
notion of intentional good faith if the test were to be carried a step further,
to the point where the judge would decide if such profit was the prime goal of
the exercise of the right, or whether intention to harm was the principal motive,
and profit only incidental to it? While, admittedly, this is a less objective test,
it is consistent with the subjective-psychological basis of the doctrine of abuse
of rights and “intentional” good faith.
4.
ILLUSTRATIONS OF ABUSE OF RIGHTS
The classic example of abuse of rights is in the field of property ownership.
It deals with the abuse of the absolute right of ownership. Thus it has been
held that an owner of a field adjoining an airfield cannot erect high poles on
his field with the intention of preventing aircraft from flying low over his
field. 78 Such owner has the right to build on his land for “un but de revenu
lgitime ou pour les habiter personnellement, et non dans le but malicieux de
nuire au commerce de la demanderesse”. 79 A fence built on one’s land with
“malice et mauvaise foi” is an abuse of right if the aim of such construction
was to “se venger et de nuire au demandeur” A0
With the tremendous modem increase of the power and scope of adminis-
trative bodies, the doctrine of abuse of rights has become very useful in the
protection of the individual against excesses by public officers. Such officers
enjoy wide rights and discretion but these must be exercised in good faith, and
with no malicious intention.”‘
Other examples of abuse of rights are: malicious prosecution; absolute
power to dissolve a contract; and the refusal of a landlord to allow assignment
of a lease by a tenant who is no longer able to pay the rent.
CONCLUSION
There remains now the task of finding a unifying link which will bind
these two basic divisions of the notion of good faith into a unified concept.
In other words, we must ask ourselves the question: what, if any, is the basic
common element between the notion of “intellectual” good faith and that of
“‘intentional” good faith?
-‘AM,.Rimouski Ltie. r. Gagnon [1952] S.C. 149.
-91bid., at p. 152.
-“Blais v. Giroux [19581 S.C. 569, at p. 570. See also a similar decision in Laperriert v. Lemieux
fI95.hJ R.L. n.s. 229.
5.
tCon v. Caren (1931) 34 Q.P.R. 385; Berubi v. Brult
(1932) 35 Q.P:R. 414.
No. 1)J
NOTION OF GOOD FAITH
Unlike Rome which recognized both bona fide and stricte iure contracts, in
our law all contracts are bona fide. The judge must interpret every contract,
every obligation, and every legal relation or conflict which is brought before
him in the light of equity. The needle which the judge uses to inject this
equity into the interpretation of the law is the notion of good faith.
But while the needle is always that of good faith, it may inject different
serums. The judge cannot simply apply an abstract notion of good faith in
interpreting contracts. He must depend on a concrete standard or criterion.
Once the judge has derogated from the strict law, he must substitute another
criterion for it. He must pick and choose the serum (criterion) which the good
faith needle will inject into the law so that such injection will result in a more
equitable solution of a legal issue.
The two most effective serums which can produce such a result are morality,
and social expediency and order. It is these two criteria which the judge
employs when he resolves a legal question in the light of good faith. This is
so, whether the issue concerns the rights of a possessor as against the true
owner of the land, or whether the judge is asked to set aside a contract entered
into by a debtor in fraud of his creditors. Morality and social expediency,
then, are the two common elements which unify “‘intellectual” good faith and
“intentional” good faith into one general juridical notion.
The judge, moreover, must strike a satisfactory balance between these two
elements. Often, as in the case of abuse of rights, for example, a social con-
sideration is also a moral one. Sometimes, however, a conflict arises between
In no
the two, and the judge must decide which criterion shall prevail.
circumstances, however, must a social interpretation lead to immoral results.
In the field of property, social considerations are often given priority over
moral ones, while in the law of persons, the reverse is almost always true.
When patrimonies are the main object of the contract or obligation, social
expediency primarily rules. Where people and their interrelations are concerned,
morality in the main governs.
So, in fact, we are faced with the central proposition with which I began:
equity is the sum total of morality and justice plus social expediency and order.
The juridical translation of this equity is the general notion of good faith.
To emphasize the importance of the notion at this stage would be redundant
as well as superfluous. Suffice it to say that no legal system such as ours, based
as it is on Judeo-Christian ethical principles and on Roman logic and order,
could function without a notion of good faith. In the final analysis, we see
in it the triumph of the psychological, flexible, and internal principles of law
over the rigid objectivism and formalism that is characteristic of the exterior-
ization theory of law.
La regle mime de toute rencontre humaine est incus dans ces mots: bonne foi,
mauvaise foi.
AN HISTORICAL SURVEY OF INTERNATIONAL AIR LAW
BEFORE THE SECOND WORLD WAR*
Peter H. Sand (Germany)
Jorge de Sousa Freitas (Brazil)
Geoffrey N. Pratt (U.K.)
EDITOR’S NOTE: This article is the first of a two-part series dealing with
the development of international air law from its very beginnings until the
present time. The second and concluding article, which will be an historical
survey of international air and space law between the end of World War II
and recent times, is under preparation and will appear in a subsequent issue
of the Journal.
INTRODUCTION
The aim of this article is to present an historical outline of the more
interesting and important aspects of air law from its beginning to the year
1944. There is a vast amount of literature dealing with aviation and it may be
convenient to interested readers to have some of the more important events
relating to the development of air law compressed into a comparatively short
treatise. In doing this, however, the authors realize that features which are
deemed important by some jurists may have been omitted.
Chapter I
AIR LAW PRIOR TO 1919
Air law has been described as the “last born of juridical notions.”‘
Its
very origin, however, can be traced back to classical Roman Law2 when the
basic problem of rights in the airspace was first noted. The maxim “Cuius est
solum, eius est usque ad coelum” (who owns the land, owns even to the skies)
has provoked legal discussion ever since, in the fields of both municipal and
international law:–from the case of Bury v. Pope (1586, Cro. Eliz. 118) in the
Common Law to the codes of the Civil Law adopted in the 19th and 20th
century;3 from Grotius’s “De iure belli ac pacis”4 and Danck’s “De iure principis
*Research project by Peter H. Sand (Germany), Jorge de Sousa Freitas (Brazil) and Geoffrey Pratt
(U.K.) post-graduate students of the Institute of Air and Space Law, McGill University.
1I Goff, Marcel, The Present State of Air Law, The Hague (Ni jhoff 1950) 24.
2Pampaloni, Muzio, Sulla condiZione giuridica dello rpa~io aerro e del iottoesolo nel diritto romano r
odierno, Archivio Giuridio 48 (1892), 35; Lardonc, Francesco, Airspace Rights in Roman Law, Air Law
Review 2 (1931), 455; Cooper, J. C., Roman Law and the Maxim “iCuius et solum” in International
Air Law, Montreal, (McGill, 1952.)
3See French Civil Code (1804), art. 552; Austrian Civil Code (1811), section 297; Italian Civil Code
(1866), art. 440; Quebec Civil Code (1866), art. 414; German Civil Code (1900), section 905; S~vii,
Civil Code (1907), art. 667.
4(1625); see Book I, Chapter 2, Sec. 3(1).
