BlogContracts & TransactionsLegal ResourcesBona Fides: the Panacea for all the Contractual Relationships

July 7, 20210

In everyday life, people –  consciously or not – enter into contractual relationships.  In a previous post entitled “Contracts,” we have briefly elaborated the concept. Despite the legal articulation given by various legislations, in principle contracts have a common ground: alignment between parties’ willfulness to enter into a common agreement. The contractual relationship is the process where trust develops into commitment. People might be guided by a common interest in exchange of capital and money. Common values and bona fides are necessary for maintaining a long-term contractual relationship. All these mechanisms bring parties into abidingness and provide validation to the civil nature of their obligations.

According to the Albanian Civil Code (CC) – a contract is a legal act by which one or several parties establish, change or terminate a legal relationship (Article 659, CC). The lawmaker acknowledges the freedom of content (Article 660, CC) to all the contractors. The latter must comply only with the binding legal requirements, otherwise the validity of their act might be affected. Such requirements are: the expressed consent of each party – willing to undertake the obligation, the legal cause whereon such obligation is built on, the scope framing the content of the contract and the form required by law. The last one is a very important element in specific contracts, such as the ones for the sale of immovable property, because it affects the validity of the Contract (Article 750, CC).

Bona fides (in “good faith” from Latin) as a communication tool is materialized in two moments. First, during the negotiation process, and secondly, on any other occasion when interpreting the contract. Good faith, as a principle, goes beyond civil relationships. It is acknowledged as a general principle of law governing not only the rapport between the parties but inter- State relations as well. It has no specific legal definition since it can be constituted in different forms. Anyhow, it is understood as the expression of good morals in the process of drafting the contract. It reflects parties’ consent to enter a contract by acknowledging and respecting each- others’ rights and obligations. Followed by the mutual will of respecting the demanded legal provisions, for making their relationship formal. In the Albanian Civil Code, bona fide is implied in the expressed determination by each of the parties. It puts light to the whole negotiation and execution process. It serves for the termination of the contract as well (Article 681, CC).

Since a written contract is concluded for the purposes of reducing uncertainties and complying prudently, the manner in which the conditions are drafted is important. Despite the purposes of benefiting and taking responsibilities, parties have to pay attention to articulate reciprocal rights and obligations. They should refrain themselves from outlining conditions that might put them in any other position except of being equal and impartial. Otherwise any contract that foresees losses or damages to the interest of one of them is invalid and does not reproduce legal effects (Article 686, CC). 

A Contract should not serve at any moment as a burden for the debtor. For that reason, a very helpful tool for its best interpretation is the ‘literal meaning’. This t is essential because it expresses the concrete will of the parties’, in writing. Anyhow, even when any of the conditions might be ambiguous, the act should always be interpreted in such a way that brings effects for the assignees (Article 683 and Article 685, CC). 

Contracts pave the way for having noble legal experiences with one another. Such engagement promotes legal education and comforts all the affected parties with fair treatment by the law. Ergo, it is important to accomplish written acts for any civil relationship. Not driven by the lack of faith, but due to the trust in the law.

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