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Pacta sunt servanda^[1] ("agreements must be kept.") is a brocard and a fundamental principle of law which holds that treaties or contracts are binding upon the parties that entered into the treaty or contract.^[2] It is customary international law.^[3] According to Hans Wehberg, a professor of international law, "few rules for the ordering of Society have such a deep moral and religious influence" as this principle.^[4]

In its most common sense, the principle refers to private contracts and prescribes that the provisions, i.e. clauses, of a contract are law between the parties to the contract, and therefore implies that neglect of their respective obligations is a violation of the contract. The first known expression of the brocard is in the writings of the canonist Cardinal Hostiensis from the 13th century AD, which were published in the 16th.^[5]

Modern jurisprudence

In both civil law and common law jurisdictions, the principle is related to the general principle of correct behavior in commerce, including the assumption of good faith.^[6] While most jurisdictions in the world have some form of good faith within their legal systems, there exists debate as to how good faith should be evaluated and measured.^[7] For example, in the United States—a common law jurisdiction—the implied duty of good faith and fair dealing exists in all commercial contracts.^[8]

International law

Under international law, "every treaty in force is binding upon the parties to it and must be performed by them in good faith."^[9] This entitles states party to the Vienna Convention on the Law of Treaties (signed 23 May 1969 and entered into force on 27 January 1980) to require that obligations instituted by treaties be honored and to rely on such obligations being honored. This basis of good faith for treaties implies that a party to a treaty cannot invoke provisions of its municipal (domestic) law as justification for negligence of its obligations pursuant to the treaty in question.

The only limits to application of pacta sunt servanda are the peremptory norms of general international law, which are denominated "jus cogens", i.e. compelling law. The legal principle of clausula rebus sic stantibus in customary international law also permits non-satisfaction of obligations pursuant to treaty because of a compelling change of circumstances.

References

^ Latin for "agreements must be kept", Black's Law Dictionary (8th ed. 2004)
^ Wehberg, Hans (1959). "Pacta Sunt Servanda". American Journal of International Law. 53 (4): 775–786. doi:10.2307/2195750. ISSN 0002-9300. JSTOR 2195750.
^ Kunz, Josef L. (1945). "The Meaning and the Range of the Norm Pacta Sunt Servanda". American Journal of International Law. 39 (2): 180–197. doi:10.2307/2192340. ISSN 0002-9300. JSTOR 2192340.
^ Wehberg, H., 'Pacta Sunt Servanda', The American Journal of International Law 53, no. 4 (1959), accessed 10 February 2022
^ Hyland, 1994, p. 416
^ E., Nedzel, Nadia. A Comparative Study of Good Faith, Fair Dealing, and Precontractual Liability. pp. 98–99. OCLC 1306381919.{{cite book}}: CS1 maint: multiple names: authors list (link)
^ Mackaay, Ejan (2011). "Good Faith in Civil Law Systems – A Legal-Economic Analysis". SSRN Electronic Journal: 157–170. doi:10.2139/ssrn.1998924. hdl:1866/18314. ISSN 1556-5068. S2CID 144021119.
^ Kelly, Catherine (July 26, 2016). "What You Should Know about the Implied Duty of Good Faith and Fair Dealing". The American Bar Association. Archived from the original on April 2, 2022. Retrieved June 16, 2022.
^ Vienna Convention on the Law of Treaties (signed in Vienna, Austria on 23 May 1969 and entered into force on 27 January 1980), Article 26; and Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations (signed in Vienna on 21 March 1986), Article 26: not yet entered into force.

External links

Britannica Online Encyclopedia - Pacta sunt servanda
Richard Hyland, Pacta sunt servanda: a meditation, Virginia Journal of International Law 34, no. 2 (1994): 405–433.

[1] Latin for "agreements must be kept", Black's Law Dictionary (8th ed. 2004)

[2] Wehberg, Hans (1959). "Pacta Sunt Servanda". American Journal of International Law. 53 (4): 775–786. doi:10.2307/2195750. ISSN 0002-9300. JSTOR 2195750.

[3] Kunz, Josef L. (1945). "The Meaning and the Range of the Norm Pacta Sunt Servanda". American Journal of International Law. 39 (2): 180–197. doi:10.2307/2192340. ISSN 0002-9300. JSTOR 2192340.

[4] Wehberg, H., 'Pacta Sunt Servanda', The American Journal of International Law 53, no. 4 (1959), accessed 10 February 2022

[5] Hyland, 1994, p. 416

[6] E., Nedzel, Nadia. A Comparative Study of Good Faith, Fair Dealing, and Precontractual Liability. pp. 98–99. OCLC 1306381919.{{cite book}}: CS1 maint: multiple names: authors list (link)

[7] Mackaay, Ejan (2011). "Good Faith in Civil Law Systems – A Legal-Economic Analysis". SSRN Electronic Journal: 157–170. doi:10.2139/ssrn.1998924. hdl:1866/18314. ISSN 1556-5068. S2CID 144021119.

[8] Kelly, Catherine (July 26, 2016). "What You Should Know about the Implied Duty of Good Faith and Fair Dealing". The American Bar Association. Archived from the original on April 2, 2022. Retrieved June 16, 2022.

[9] Vienna Convention on the Law of Treaties (signed in Vienna, Austria on 23 May 1969 and entered into force on 27 January 1980), Article 26; and Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations (signed in Vienna on 21 March 1986), Article 26: not yet entered into force.

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+{{Short description|Latin legal phrase}}
-'''''Pacta sunt servanda''''' ([[Latin]] for "agreements must be kept"<ref>Black's Law Dictionary (8th ed. 2004)</ref>), a [[Brocard (law)|brocard]], is a basic principle of [[Civil law (legal system)|civil law]], [[canon law]], and [[international law]].
+{{Italic title}}{{See also|Good faith (law)}}
+'''''Pacta sunt servanda'''''<ref>[[Latin]] for "agreements must be kept", Black's Law Dictionary (8th ed. 2004)</ref> ("agreements must be kept.") is a [[Brocard (law)|brocard]] and a fundamental [[principle of law]] which holds that treaties or contracts are binding upon the parties that entered into the treaty or contract.<ref>{{Cite journal |last=Wehberg |first=Hans |date=1959 |title=Pacta Sunt Servanda |url=https://www.cambridge.org/core/journals/american-journal-of-international-law/article/abs/pacta-sunt-servanda/E8967A236B1141934DD8D1495FEA2BFA |journal=American Journal of International Law |language=en |volume=53 |issue=4 |pages=775–786 |doi=10.2307/2195750 |jstor=2195750 |issn=0002-9300}}</ref> It is [[customary international law]].<ref>{{Cite journal |last=Kunz |first=Josef L. |date=1945 |title=The Meaning and the Range of the Norm Pacta Sunt Servanda |url=https://www.cambridge.org/core/journals/american-journal-of-international-law/article/abs/meaning-and-the-range-of-the-norm-pacta-sunt-servanda/87674E485CBE023C0A16B6B429FA2361 |journal=American Journal of International Law |language=en |volume=39 |issue=2 |pages=180–197 |doi=10.2307/2192340 |jstor=2192340 |issn=0002-9300}}</ref> According to Hans Wehberg, a professor of [[international law]], "few rules for the ordering of Society have such a deep moral and religious influence" as this principle.<ref>Wehberg, H., '[https://www.jstor.org/stable/2195750 Pacta Sunt Servanda]', ''[[The American Journal of International Law]]'' 53, no. 4 (1959), accessed 10 February 2022</ref>
+In its most common sense, the principle refers to private [[contract]]s and prescribes that the provisions, i.e. [[clause]]s, of a contract are [[law]] between the parties to the contract, and therefore implies that neglect of their respective obligations is a violation of the contract. The first known expression of the brocard is in the writings of the [[Canon law of the Catholic Church|canonist]] [[Henry of Segusio|Cardinal Hostiensis]] from the 13th century AD, which were published in the 16th.<ref>Hyland, 1994, p. 416</ref>
+== Modern jurisprudence ==
+In both [[Civil law (legal system)|civil law]] and [[common law]] jurisdictions, the principle is related to the general principle of correct behavior in commerce, including the assumption of [[good faith]].<ref>{{Cite book |last=E. |first=Nedzel, Nadia |url=http://worldcat.org/oclc/1306381919 |title=A Comparative Study of Good Faith, Fair Dealing, and Precontractual Liability. |pages=98–99 |oclc=1306381919}}</ref> While most jurisdictions in the world have some form of good faith within their legal systems, there exists debate as to how good faith should be evaluated and measured.<ref>{{Cite journal |last=Mackaay |first=Ejan |date=2011 |title=Good Faith in Civil Law Systems – A Legal-Economic Analysis |url=http://dx.doi.org/10.2139/ssrn.1998924 |journal=SSRN Electronic Journal |pages=157–170 |doi=10.2139/ssrn.1998924 |s2cid=144021119 |issn=1556-5068|hdl=1866/18314 |hdl-access=free }}</ref> For example, in the United States—a common law jurisdiction—the implied duty of good faith and fair dealing exists in all commercial contracts.<ref>{{Cite web |last=Kelly |first=Catherine |date=July 26, 2016 |title=What You Should Know about the Implied Duty of Good Faith and Fair Dealing |url=https://www.americanbar.org/groups/litigation/committees/business-torts-unfair-competition/practice/2016/duty-of-good-faith-fair-dealing/ |url-status=live |archive-url=https://web.archive.org/web/20220402032333/https://www.americanbar.org/groups/litigation/committees/business-torts-unfair-competition/practice/2016/duty-of-good-faith-fair-dealing/ |archive-date=April 2, 2022 |access-date=June 16, 2022 |website=The American Bar Association}}</ref>
-In its most common sense, the principle refers to private [[contract]]s, stressing that contained [[clause]]s are [[law]] between the parties, and implies that nonfulfillment of respective obligations is a breach of the pact. The maxim first appears in the writings of the [[Canon law of the Catholic Church|canonist]] Cardinal [[Henry of Segusio|Hostiensis]], written in the 13th century but published in the 16th.<ref>Hyland, 1994, p. 416</ref>
-== Civil law ==
-In civil law jurisdictions this principle is related to the general principle of correct behavior in commercial practice – including the assumption of ''[[good faith]]'' – is a requirement for the efficacy of the whole system, so the eventual disorder is sometimes punished by the law of some systems even without any direct penalty incurred by any of the parties.{{Citation needed|date=May 2015}} However, common law jurisdictions usually do not have the principle of good faith in commercial contracts, therefore it is inappropriate to state that ''pacta sunt servanda'' includes the principle of good faith.
 == International law ==
-With reference to international agreements, "every [[treaty]] in force is binding upon the parties to it and must be performed by them in [[good faith]]."<ref>From the [[Vienna Convention on the Law of Treaties]], signed at Vienna on May 23, 1969, entered into force on January 27, 1980, art. 26, and the [[Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations]], signed at Vienna on March 21, 1986, ''not yet entered into force'', art. 26.</ref> This entitles [[State (polity)|states]] to require that obligations be respected and to rely upon the obligations being respected. This good faith basis of treaties implies that a party to the treaty cannot invoke provisions of its [[Municipal law|municipal (domestic) law]] as justification for a failure to perform. However, with regards to the Vienna Convention and the [[UNIDROIT]] Principles it should be kept in mind that these are heavily influenced by civil law jurisdictions. To derive from these sources that ''pacta sunt servanda'' includes the principle of good faith is therefore incorrect.
+Under international law, "every [[treaty]] in force is binding upon the parties to it and must be performed by them in [[good faith]]."<ref>''[[Vienna Convention on the Law of Treaties]]'' (signed in [[Vienna]], [[Austria]] on 23 May 1969 and entered into force on 27 January 1980), Article 26; and ''[[Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations]]'' (signed in Vienna on 21 March 1986), Article 26: ''not yet entered into force''.</ref> This entitles [[State (polity)|states]] party to the [[Vienna Convention on the Law of Treaties]] (signed 23 May 1969 and entered into force on 27 January 1980) to require that obligations instituted by treaties be honored and to rely on such obligations being honored. This basis of good faith for treaties implies that a party to a treaty cannot invoke provisions of its [[Municipal law|municipal (domestic) law]] as justification for negligence of its obligations pursuant to the treaty in question.
-The only limit to ''pacta sunt servanda'' are the [[peremptory norm]]s of general international law, called ''[[jus cogens]]'' (compelling law). The legal principle ''[[clausula rebus sic stantibus]]'', part of [[customary international law]], also allows for treaty obligations to be unfulfilled due to a compelling change in circumstances.
+The only limits to application of ''pacta sunt servanda'' are the [[peremptory norm]]s of general international law, which are denominated "''[[peremptory norm|jus cogens]]''", i.e. compelling law. The legal principle of ''[[clausula rebus sic stantibus]]'' in [[customary international law]] also permits non-satisfaction of obligations pursuant to treaty because of a compelling change of circumstances.
 ==See also==
 *[[Breach of contract]]
 *[[Breach of the peace]]
+*''[[Schubert Jurisprudence]]''
 *[[Efficient breach of contract]]
 *[[Fundamental breach]]
@@ Line 17: / Line 23: @@
 *[[List of Latin phrases]]
 *[[List of legal Latin terms]]
-== Notes ==
-{{reflist}}
 ==References==
+{{Reflist}}
-*Richard Hyland. “''Pacta sunt servanda'': a meditation”, ''Virginia Journal of International Law'' 34, no. 2 (1994): 405-433.
-*[[Hans Wehberg|H Wehberg]]. '[https://www.jstor.org/stable/2195750 Pacta Sunt Servanda]', ''[[The American Journal of International Law]]'' 53, no. 4 (1959).
 ==External links==
 *[http://www.britannica.com/eb/topic-930509/pacta-sunt-servanda Britannica Online Encyclopedia - Pacta sunt servanda]
+*Richard Hyland, [http://translex.uni-koeln.de/124500/_/hyland-richard-pacta-sunt-servanda:-a-meditation-34-vjil-1994-at-405-et-seq/ ''Pacta sunt servanda'': a meditation], ''Virginia Journal of International Law'' 34, no. 2 (1994): 405–433.
+{{Authority control}}
-[[Category:Brocards]]
+[[Category:Brocards (law)]]
 [[Category:Civil law (common law)]]
 [[Category:Civil law legal terminology]]
@@ Line 34: / Line 39: @@
 [[Category:International law]]
 [[Category:International law legal terminology]]
-[[Category:Latin legal terminology]]
+[[Category:Legal rules with Latin names]]
-[[Category:Law-related lists|Legal Latin]]
 [[Category:Law of obligations]]
 [[Category:Legal doctrines and principles]]
-{{Italic title}}