good faith

Which translation, when

Why

English uses one phrase for two ideas, the honesty of a state of mind and the decency of conduct, and English contract law is famously reluctant about the second, there is no general duty to perform in good faith. German law not only imposes such duties, it splits the phrase. Treu und Glauben, § 242 BGB, is the objective yardstick for how every obligation is performed and, through § 157 BGB, for how contracts are read. Guter Glaube is a different institution altogether, the subjective belief that lets a buyer acquire from a non-owner, § 932 BGB. The two never substitute for each other, a German lawyer who reads in gutem Glauben expects a question of knowledge, not a standard of conduct. So the translation decides which doctrine the sentence invokes, and the reflex rendering picks the wrong one for the use contracts make of the phrase most often.

Typical mistakes

• In gutem Glauben handeln for a duty to act in good faith sends the German reader to knowledge and belief when the clause wanted conduct, the reader looks for what a party knew instead of how it must behave.
• Bona fide stays on the belief side in German too, a good faith purchaser is a gutgläubiger Erwerber, not someone acting nach Treu und Glauben.
• Utmost good faith in insurance is covered by neither phrase, German insurance law works through statutory duties of disclosure, §§ 19 ff. VVG.

What matters

Negotiation clauses show the fork: the parties shall negotiate in good faith reads nach Treu und Glauben verhandeln, a conduct standard a German court can work with, while in gutem Glauben verhandeln says the parties will negotiate while believing something, a sentence with no operative content. One phrase invokes § 242 BGB, the other misses German law entirely.

Examples