Pacta sunt servanda

Pacta sunt servanda, Latin for "agreements must be kept",[1] is a brocard and a fundamental principle of law.

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 AD 13th century, yet which were published in the 16th.[2]

Civil law

In civil law jurisdictions, the principle is related to the general principle of correct behavior in commerce, including the assumption of good faith. It is a requirement for the efficacy of the whole commercial system, so the law of some jurisdictions sometimes punishes the disorder even without direct punishment of any party.

Common law jurisdictions usually do not have the principle of good faith for commercial contracts; therefore regarding the common law it is inappropriate to state that pacta sunt servanda includes the principle of good faith.

International law

In international law, "every treaty in force is binding upon the parties to it and must be performed by them in good faith."[3] This entitles states party to the Convention 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.

See also

Notes
  1. Black's Law Dictionary (8th ed. 2004)
  2. Hyland, 1994, p. 416
  3. 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.

References
  • Richard Hyland. “Pacta sunt servanda: a meditation”, Virginia Journal of International Law 34, no. 2 (1994): 405–433.
  • H Wehberg. 'Pacta Sunt Servanda', The American Journal of International Law 53, no. 4 (1959).
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