Între credinţă şi încredere: despre standarde de bună credinţă în materie de garanţii

Rezumat

The good faith is a magic word of the law, but its definition eludes any attempt to give it a clear meaning. Maybe the only certainty about it is its purpose to level the sharp edges of the common law. This paper presents a new view on the unifying of the various standards of good faith as a basis for explaining three special applications to secured transactions. First application refers to the good faith during negotiations of granting security, where the abusive behavior of the lender is generally at play. The second application regards the role of the good faith in consolidating a security interest that was improperly created. In here there are significant difference between security interests in personal property (where the National Registry of Publicity over Movable Assets has a central place) and the real estate mortgages (where the reliance effect of the Land Register is essential). The third application concerns the scope of the good faith in enforcing the security interest, where the novel standard of commercial reasonableness is presented.

Keywords: good faith; commercial reasonableness; abuse of rights; secured transactions.