I think it is a legal category which distinguishes expert witnesses who can testify at trial from non-expert witnesses who are barred from testifying at trial.

Bona Fides: a Both Legal and Moral

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MORAL SELF-OWNERSHIP AND IUS POSSESSIONIS IN

… https://link.springer.com/content/pdf/10.1007/1-4020-4212-4_6.pdf

Moral Self-Ownership and Ius Possessionis in Late Scholastics 153 to be in good faith (bona fides) ... for imposing moral restrictions on civil law.

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Chapter Moral Self-Ownership and IUS Possessionis in Scholastics

Dennis

Dennis Mazur

I consider it as a part of legal requirements.

In Anglo-European and derivative legal systems (including civil law and common law systems), bona fides, or good faith, is a moral concept applicable to civil law legal relations.

Civil law systems nominally assume that civil law relations are to be conducted in good faith. Common law systems demand good faith more situationally, e.g. in insurance contracts, consumer contracts and otherwise in case of a marked disparity in bargaining power apparent to the parties. In either type of legal system, the practical result is that good faith is not positively required, but its absence (if proved) may defeat an otherwise enforceable civil law claim.

These notes can be summarized in two points applicable to Western legal systems:

It may be added that both civil law and common law legal systems' respective claims to legitimacy are based on sovereignty, not on natural law or the supposed authority of any religious text. Western legal systems depend on political power and administrative pragmatism, not on morality.

In spanish civil&commercial law bona fides is a legal principle.

Art 7 Spanish Civil Code (applicable to commercial relationships) says: "1. Rights mut be excersised in accordance of the requirements of good faith". (Bona fides from an objective sense).

Art. 1258 Spanish Civil Code (applicable to commercial relationships): "Contracts are perfected by mere consent and since then bind the parties, not just to the performace of the matters expressly agreed therein, but also to all consequencies wich, according to their nature, are in accordance with good faith, custom, and the law". (Bona fides from a subjective sense)

Art. 57 Spanish commercial code says "Business contracts shall be implemented an fullfiled in good faith, pursuant to the terms under which they were made and drafted, whitout misinterpreting them through arbitrary constructions of the correct, proper and usual sense of the words said or written or restrictions of the efects naturally arising from the way in which the parties to the contract would have explained their will and contracted their obligations." (Bona fides from a subjective sense).

In light of Lorenzo's answer, I have to modify my previous statement that "[c]ivil law systems nominally assume that civil law relations are to be conducted in good faith". As Lorenzo indicates, some civil law jurisdictions, including Spain, positively require good faith.

Switzerland is an even stronger example. In Switzerland, the good faith requirement appears not only in section 2(1) of the Swiss Civil Code, it is entrenched in section 5(3) of the Federal Constitution. At least some of the cantonal constitutions, e.g. section 2(3) of the Constitution of the Canton of Zürich, likewise entrench the the good faith requirement. The federal constitutional provision extends the good faith requirement to the public law context. This circumstance has given rise to extensive litigation aimed at restricting the power of public authorities to modify previous administrative decisions, e.g. a decision to grant a permit.

Having said this, the good faith requirements according to section 2(1) of the Swiss Civil Code and section 5(3) of the Federal Constitution are challenging to use in practice. The Federal Court interprets these requirements restrictively.

Legislative provisions requiring good faith appear not to be universal among Europe's civil law jurisdictions. So far as I have seen, the Swedish parliament has not enacted any such provision. The situation in Sweden is apt to reflect the approach taken throughout Scandinavia.

Michael Lusk, Lorenzo Prats-albentosa, in In my opinion, the principle of good faith (objective good faith) lies in the fact that persons are not only obliged to comply with the law, but also exercise their rights diligently, as is common in practice, i.e. to act “like everyone”, “as is customary”. From this reasoning, we can make a number of intermediate conclusions:

First, a good-faith action can be considered to be one that is usually taken by a normal average participant of a legal relationship. Bad faith is a departure from the usual, accepted and common norms of behavior. Bad-faith behavior are inherent in artificiality, farfetchedness.

Secondly, good faith is a legal category, and not a category of morality or ethics. Therefore, there is no reason to believe that the principle of good faith is based on honest attitude to each other.

Thirdly, good faith is introduced because of the needs of practice, not of theory, and even more so, of the needs of the law. This principle has a purely practical value.

Objective good faith in Russian civil law is enshrined in article 1 of the Civil Code of the Russian Federation, and subjective good faith (lack of awareness of certain circumstances) is enshrined in a number of articles, for example, 302, 234 of the Civil Code of the Russian Federation.

Tikhon Podshivalov, your view from a Russian perspective closely matches my understanding from a Swiss perspective.

In Swiss law, good faith has a strong normative value and also is a legal category, since it is codified in the Swiss Civil Code and also is entrenched in the Swiss Federal Constitution. The situation is somewhat different in Australian law, which recognizes a category of unconscionable conduct within the jurisdiction of equity (i.e. the jurisdiction of equity as distinct from the jurisdiction of law or common law, whereby the Australian equitable jurisdiction is an extension of the English equitable jurisdiction, which for its part originated in continental ecclesiastical law). While good faith may also be a moral and ethical category, that need not concern us here.

I see that Art. 1(4) of the Russian Civil Code closely mirrors Art. 2(2) of the Swiss Civil Code in explicitly stipulating that the court may deny legal protection to an actor who offends against the good faith requirement. If you are interested in comparing the Swiss Civil Code, an official English translation is available along with the authoritative German, French and Italian texts at the Federal Council's website: https://www.admin.ch/opc/en/classified-compilation/19070042/index.html.

I think the need for good faith is approximately equally balanced between society's need for a minimum standard of conduct in engaging in legal relations (lest society cease to function) and the legal system's need to be perceived as legitimate (lest the people revolt).

A sociological consequence of the good faith requirement is that it operates as a social engineering tool serving to modify the behavior of legal actors (lest the court refuse to grant a remedy despite proof of the corresponding right). I think it is at least arguable that a legally codified good faith requirement limits individual freedom in a society. In contrast to the purported (and legally unenforceable) "British sense of fair play", a codified good faith requirement carries a certain sense of coerced virtue.