In this context, Collins (1994, 230) stated that “the traditional solution for international transactions invokes the choice of law rules of private international law. under these rules, now codified by the Rome Convention, the parties to a contract are free to select the governing law, and in the absence of an express choice, the default rule applies the law which is most closely connected to the transaction”. In other words, the law applicable in a specific contract is decided primarily by the parties of this contract and only in cases that no special provision exists, then this issue is resolved directly by the relevant legal provisions referring to jurisdiction in cases of international transactions. The examination of the validity and the content of a contract has been traditionally an issue of primary importance for countries of civil law. For common law countries, the above issues are also extensively examined by the courts. In this context, the study of Beatson et al., (1997, 14) showed that “once the contract passes the test of initial validity, the control of its terms on the ground of unfairness becomes problematical since it is in direct conflict with the notion of freedom of contract. nevertheless, the law has for centuries possessed tools that could be utilized in order to exercise such control, notably the doctrine of public policy and the equitable rules against penalty and forfeiture. the doctrine of good faith provides another important tool for the control of contractual terms and their application. the doctrine has long been recognized by continental law. recently it has been gradually absorbed by a number of common law jurisdictions”. In accordance with the above researcher, the doctrine of ‘good faith’ is not broadly used in common law countries but only in cases where its application is inevitable taking into account the circumstances of a specific country and the behaviour of the parties involved.
As pointed out by Summers (1968, 198) ‘Without a principle of good faith, a judge might, in particular cases, be unable to do justice at all, or he might be able to do it only at the cost of fictionalizing existing legal concepts and rules, thereby snarling up the law for future cases. in begetting snarl, fiction may introduce inequity, unclarity or unpredictability. in addition, fiction can divert analytical focus or even cast aspersions on an innocent party’.