Can good faith override the written words of a contract?

Exceptionally, yes. Under article 6:248(2) BW a clause may be set aside where applying it would be unacceptable by the standards of reasonableness and fairness, but courts use this power sparingly.

Does good faith impose pre-contractual obligations?

Yes. Under Dutch law, parties in negotiations have obligations of good faith towards each other: a duty to provide material information and, in certain circumstances, a duty not to break off negotiations arbitrarily.

How is good faith different from equity in English law?

English law has no general good-faith doctrine in contracts; it uses specific equitable doctrines (estoppel, unconscionability) case by case. Dutch law applies redelijkheid en billijkheid systematically as an overarching principle for all obligations.

Can parties exclude good faith by contract?

No. The supplementary and derogating effect of good faith under BW 6:248 is a mandatory principle; it cannot be contracted out of. Parties can shape their obligations in detail, but a court can always apply good faith where applying agreed terms would be unacceptable.

What is the Haviltex standard and how does it relate to good faith?

The Haviltex standard (HR 1981) is the Dutch rule for contract interpretation: meaning depends on what parties reasonably could and did expect from each other, not just literal text. It is an expression of good faith applied to the interpretation stage.

Good faith

The duty to act honestly and reasonably in forming and performing a contract.

Definição

Good faith is the principle that parties must deal honestly, fairly, and reasonably with one another, both when negotiating and when performing a contract. In Dutch law this is the central doctrine of redelijkheid en billijkheid: under article 6:248 it can supplement the contract with additional duties and, in exceptional cases, set aside a clause that would be unacceptable to apply. Article 6:2 extends the same standard to all obligations between parties.

Exemplo

A party tries to enforce a clause to the letter in a way neither side ever intended; a court may set it aside as contrary to reasonableness and fairness.

Porque é um risco para a empresa

Good faith is a double-edged principle. It can protect you when a counterparty exploits a technicality, but it also creates implied obligations that go beyond the written text. Businesses that rely on the literal wording of a clause to avoid responsibilities that any reasonable person would expect them to honour may find courts unwilling to enforce that position.

Como gerir

Draft contracts with the intent of the parties clear on paper, so there is no room for a court to imply a different obligation.
When a contract becomes difficult to perform, communicate early and in writing rather than simply defaulting; courts look at the conduct of both parties.
Review long-term contracts periodically to check whether changed circumstances have created a gap that good faith might fill in an unexpected way.

Referências jurídicas

Salvo indicação em contrário, as referências remetem para o direito neerlandês (Burgerlijk Wetboek, o Código Civil neerlandês); os instrumentos da UE, como o RGPD, aplicam-se em toda a UE. Esta é informação geral, não constitui aconselhamento jurídico. Outras jurisdições tratam estes conceitos de forma diferente. Verifique o texto em vigor e a sua situação com um advogado qualificado.

Perguntas frequentes

Questões comuns sobre este termo.