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Universidade Autónoma de Lisboa

e-ISSN: 1647-7251

Vol. 10, Nº. 2 (November 2019-April 2020), pp. 141-151

BETWEEN FREEDOM OF CONTRACT AND THE PRINCIPLE OF GOOD FAITH: AN

INSIDE VIEW ON THE REFORM OF PRIVATE LAW OF KAZAKHSTAN

Kamal K. Sabirov

sabirov.k@gmail.com

PhD student in Legal Sciences at L.N. Gumilyov Eurasian National University and Senior

Researcher at the Institute of Legislation of the Republic of Kazakhstan. He is the author of more

than 40 scientific articles in Kazakh and Russian languages in the field of private law issues and

active participant of the law making process in Kazakhstan.

Venera T. Konussova

konussova@mail.ru

Deputy Director of the Institute of Legislation of the Republic of Kazakhstan; PhD in Legal

Sciences. She is one of the developers of the Enterprise Code of the Republic of Kazakhstan and

one of the authors of the Kazakhstan’s law on advocacy.

Marat A. Alenov

lscc@mail.ru

Doctor of Law, Professor at L.N. Gumilyov Eurasian National University. He is one of the lead

experts in Civil Procedure in Kazakhstan. He is the author of a large number of works in the field

of private law and civil procedure.

Abstract

Over the years since Kazakhstan gained independence there have been cardinal changes in

the country's economy associated with the inflow of foreign investments. These changes

require the implementation of foreign experience in regulating economic relations and in

particularly foreign contractual institutions. The International Financial Center "Astana" has

started functioning in Kazakhstan since 2018. The acts of the International Financial Center

are based on the principles and norms of law of England and Wales. In this regard, a large-

scale reform of the private law of the Republic of Kazakhstan was launched, aimed at

identifying a number of civil-law ideas and designs that can be measured out in the Kazakh

legislation from English law. The authors of this research are direct participants of the reform.

This study is aimed at highlighting one of the issues considered within the framework of the

reform of private law: strengthening the role of the principle of freedom of contract and the

principle of good faith in the contract law of the Republic of Kazakhstan.

Keywords

Principle of good faith; freedom of contract; bona fide purchaser; legislation of Kazakhstan;

private law of Kazakhstan

How to cite this article

Sabirov, Kamal K., Konussova, Venera T.; Alenov, Marat A. (2019). "Between freedom of

contract and the principle of good faith: an inside view on the reform of private law of

Kazakhstan". JANUS.NET e-journal of International Relations, Vol. 10, N.º 2, November 2019-

April 2020. Consulted [online] on the date of the last visit, https://doi.org/10.26619/1647-

7251.10.2.10

Article received on March 5, 2018 and accepted for publication on September 25, 2019

JANUS.NET, e-journal of International Relations

e-ISSN: 1647-7251

Vol. 10, Nº. 2 (November 2019-April 2020), pp. 141-151

Between freedom of contract and the principle of good faith:

an inside view on the reform of private law of Kazakhstan

Kamal K. Sabirov, Venera T. Konussova, Marat A. Alenov

142

BETWEEN FREEDOM OF CONTRACT AND THE PRINCIPLE OF GOOD FAITH: AN

INSIDE VIEW ON THE REFORM OF PRIVATE LAW OF KAZAKHSTAN

Kamal K. Sabirov

Venera T. Konussova

Marat A. Alenov

Introduction

Despite the fact that the legal system of the Republic of Kazakhstan is the part of the

Civil law, it was formed under the influence of the Soviet legal system and inherited many

elements from it. The private law of the Republic of Kazakhstan is much like Russian

private law. This is not surprising because both systems of private law are based on the

model code of the CIS countries and also had a common history of formation within the

framework of Soviet civil law. Nevertheless, more than 27 years have passed since the

collapse of the Soviet Union and the private law of the CIS countries has altered

appreciably (Akyn and Rakhymbai, 2017).

The reform of civil legislation has been ongoing for several years in the Russian

Federation. A number of legislative acts were adopted to amend the Civil Code of the

Russian Federation; in particular the obligation law was reformed. In the course of this

reform some legal institutions of common law were implemented.

The International Financial Center “Astana” has started functioning in the Republic of

Kazakhstan since 2018. The court of the International Financial Center relies on English

contract law, in this connection it can be stated that the process of implementation of

elements of common law into the legal system of the Republic of Kazakhstan is objective.

In connection with the beginning of the activity of the International Financial Center a

large-scale reform of the legislation on the implementation of certain provisions of English

and European law is under way. The participants of this reform are the authors of this

article. At present, the Ministry of Justice developed a draft Concept for the future bill,

which immediately aroused maximum discussion in the scientific and legal community

(Konussova and Nesterova, 2016).

The purpose of the reform of civil legislation in the Republic of Kazakhstan is the

modernization and development of private law. In this regard, it was necessary to

compare approaches to the regulation of similar institutions, understand the legal logic

and identify points of contact with it. And only on this basis to deny or to accept

innovations that common law brings to the development of continental law.

JANUS.NET, e-journal of International Relations

e-ISSN: 1647-7251

Vol. 10, Nº. 2 (November 2019-April 2020), pp. 141-151

Between freedom of contract and the principle of good faith:

an inside view on the reform of private law of Kazakhstan

Kamal K. Sabirov, Venera T. Konussova, Marat A. Alenov

143

Due to the fact that the civil legislation of the Republic of Kazakhstan and the Russian

Federation are largely similar, considerable attention was paid to the Russian experience.

But according to the respective Kazakh legal scientists, not all the ideas embodied in the

course of the reform of Russian private law can be considered as successful (Sulejmenov,

2016).

The reform of private law in the Russian Federation was confronted with conflicting

opinions between supporters of English contract law and adherents of the classical

German law school. Ultimately, during the reform an attempt to find a compromise, and

amendments of both sides were taken into account.

During the preparation of the draft law various issues were raised, including the

strengthening of the role of judicial practice, the development of the principle of good

faith and the principle of freedom of contract, the introduction of the concept of

"corporation" and legislative regulation of corporate relations, the development of holding

legislation, the implementation of individual institutions of contract law (estoppel,

liquidated damages, representations and warranties, indemnity clause, etc.). Thus, the

reform envisaged quite revolutionary changes in the current legislation, which logically

provoked resistance from conservative lawyers. In the end, some of the proposed

innovations of the project had to be abandoned.

Within the framework of this article, it is proposed to discuss one of the elements of the

reform of private law in the Republic of Kazakhstan, namely, the expansion of freedom

of contract and as a counterbalance the strengthening of the principle of good faith.

Generally, in contract law there are two fundamental principles coexisting: the principle

of freedom of contract and the principle of good faith in performance of the contract. And

if English law more attention is paid to the principle of freedom of contract, in continental

law the principle of good faith can be considered as a fundamental principle.

The freedom-of-contract doctrine implies that the parties of the contract have exactly

the same obligations as those provided in their contract. The principle of good faith

suggests that the parties of the contract have in front of each other a whole range of

other obligations that arise not from the contract but from the requirement to act in good

faith, as it is understood by this law and order. The principle of good faith can also exempt

a party from the performance of its contract obligations if this rule of law considers it fair

in this situation. Also, relying on the concerned principle the court can assign the

responsibilities to the party that were not prescribed in the contract. All this contradicts

the principle of freedom of the contract.

As a part of the ongoing reform of private law in Kazakhstan, there was an attempt to

find a compromise between the principle of good faith and freedom of contract.

Research Methods

We undertook an analysis of existing legal norms, as well as the content of research

materials of Kazakh, Russian, English, American and German specialists in the field of

private law with the purpose of comprehensive analysis of some issues of the reform of

private law of the Republic of Kazakhstan. During the research were used the works of

both Kazakh and foreign authors - representatives of the German and English law

JANUS.NET, e-journal of International Relations

e-ISSN: 1647-7251

Vol. 10, Nº. 2 (November 2019-April 2020), pp. 141-151

Between freedom of contract and the principle of good faith:

an inside view on the reform of private law of Kazakhstan

Kamal K. Sabirov, Venera T. Konussova, Marat A. Alenov

144

schools. The methodological basis of the study includes: system analysis, comparison,

theoretical and legal forecasting.

Main results and discussion

Expanding The Limits Of Freedom Of Contract

The historical roots of the principle of freedom of contract can be traced back to the

Roman law that gave great priority to the free expression of the will of a person and

denied any extraneous pressure. The principle of freedom of contract reached its peak in

the middle of the nineteenth century after that it began to increasingly restrict itself to

various legal orders.

In the United States freedom of contract is recognized as one of the constitutional rights

of a citizen. The Supreme Court confirmed the strengthening of this right in the case of

Frisbie v. United States, 157 U.S. 160 [1895] (Bernstein, D., 2008).

In general, we can distinguish three basic elements of freedom of contract: the freedom

to conclude a contract, the freedom to choose a contract and the freedom to determine

the content of the contract.

Here is how these elements are described in the comments to the Civil Code of the

Republic of Kazakhstan: "Any person, at his own discretion and under no coercion from

the outside, has the right: a) to decide whether to enter into or not to enter into a

contract; b) to elect a partner who wish to conclude a contract; c) to determine the terms

of the contract".

Controversial are the contracts which although not explicitly prohibited by law can be

considered unethical or immoral. For example such contracts are the contracts on

transplantation of human organs, which cause controversy among their supporters and

opponents (Trebilcock, 1993).

It is also necessary to touch on the issue of limiting the

principle of freedom of contract. There are separate cases of restriction of freedom of

contract even in English law. To such Craswell includes rules against liquated damages

and rules that prohibits the enforcement of promises unsupported by consideration

(Craswell, 1995).

The civil legislation of the Republic of Kazakhstan in paragraph 4 of Article 8 of the Civil

Code of the Republic of Kazakhstan establishes general requirements for the behavior of

citizens and legal entities. These evaluative concepts make it possible to establish general

limits of the contract, limiting the parties from abuse.

In addition, the operation of the principle of freedom of contract has certain exceptions,

assigned in legislative norms. Article 380 of the Civil Code of the Republic of Kazakhstan

prohibits compulsion to conclude a contract, while clarifying that this does not apply to

cases where the obligation to conclude a contract is provided for by the legislation or a

voluntarily accepted obligation.

The principle of freedom of contract plays a key role in the development of economy and

market relations. In the opinion of A. Didenko the contract serves as an instrument for

“democratization” of the economy and through it the society (Didenko, 2000). The

principle of freedom of contract is a logical continuation of the rights and freedoms

guaranteed by the Constitution of the Republic of Kazakhstan from this point of view.

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Vol. 10, Nº. 2 (November 2019-April 2020), pp. 141-151

Between freedom of contract and the principle of good faith:

an inside view on the reform of private law of Kazakhstan

Kamal K. Sabirov, Venera T. Konussova, Marat A. Alenov

145

As it follows from the Constitutional provisions in respect of the realization of the rights

and freedoms of the citizens, a discretion method of regulating legislation is used,

permitting what is not directly prohibited by the laws. The principle of discretion in

relation to the realization by man of his rights and freedoms is assigned in the Article

29.2 of the Universal Declaration of Human and Civil Rights and Freedoms, which states

that "everyone shall be subjected only such limitations that are determined by law solely

for the purpose of securing due recognition and respect for the rights and freedoms of

others".

Nevertheless, despite these rules the civil legislation of the Republic of Kazakhstan

presupposes the mandatory nature of rules of contract law. Discretion of norms is

presumed only if there is a special clause in it "unless otherwise provided by the

agreement of the parties". The rules that don’t have such clause are considered as

mandatory.

On the other hand, we note that there are mandatory norms that underline their

imperative nature with a special clause in the civil law. Currently, judicial practice shows

that in disputable issues the issue of determining the nature of the norm is decided by

the court.

In this regard, it seems natural to expand the principle of freedom of contract to improve

the business environment. At the same time it is necessary to develop the natural

limitations of the principle of freedom of contract through the principle of good faith.

Basin noted that the principles laid down in the civil legislation of the Republic of

Kazakhstan are directly opposed to those basic principles on which the previous Civil

Code of the Kazakh SSR was built (Basin, 2003). The soviet law proceeded from the fact

that it is possible to do only what is permitted by the law. All this suggests that the

discretionary norms of the contract law should be presented in the civil law in a larger

extent than the mandatory norms. However, as pointed out by Klimkin, contract law,

where the principle of freedom of contract should “work” fully, consists of mandatory

norms for almost of 90% (Klimkin, 2014).

Thus, the civil legislation of the Republic of Kazakhstan proceeds from an approach that

presupposes the mandatory norms if the norm does not directly establish its mandatory

nature. In other words, "everything that is not permitted by law is prohibited". This

restriction does not comply with the basic principles of the civil law; rights and freedoms

guaranteed by the Constitution, as well as worldwide practice and it requires the changes.

In order to work out the best option for expanding the limits of freedom of contract, it is

necessary to consider existing ways of limiting this principle. In the opinion of S. V.

Scriabin there are two main trends in the restriction of contractual freedom. The first

implies the inclusion in civil law special clauses, for example, indicating the need to

exercise civil rights in good faith, reasonably and fairly (Clause 4, Article 8 of the Civil

Code of the Republic of Kazakhstan). The second implies the strengthening in the law of

mandatory rules regarding the conditions of the certain types of contracts (Scriabin,

2003).

Analysis of civil legislation of the Republic of Kazakhstan shows the application of both

ways of restricting freedom of contract. Restriction of freedom of contract by means of

general reservations is typical for the norms on disputable transactions, and restriction

of freedom of contract by direct restrictions for the rules on null transactions.

JANUS.NET, e-journal of International Relations

e-ISSN: 1647-7251

Vol. 10, Nº. 2 (November 2019-April 2020), pp. 141-151

Between freedom of contract and the principle of good faith:

an inside view on the reform of private law of Kazakhstan

Kamal K. Sabirov, Venera T. Konussova, Marat A. Alenov

146

Based on the above, we believe that the extension of the principle of freedom of contract

should not come from the idea of eliminating the existing limitations of the principle of

freedom of contract, but from the strengthening of permissive beginnings in legislation.

Summarizing, the principle of freedom of contract is currently a fundamental principle of

civil legislation. Nevertheless, in order to ensure the full protection of this principle in

business transaction, it is necessary to significantly clarify the norms of civil legislation

for strengthening the freedom of contract.

First, it is necessary to add to article 2 of the Civil Code of the Republic of Kazakhstan

clarification that the freedom of contract is indeed the principle of civil law. Secondly, the

protection of the principle of freedom of contract can be achieved by strengthening the

discretion nature of the civil law.

The introduction of appropriate changes will significantly improve the civil legislation of

the Republic of Kazakhstan and make it friendlier for the business environment.

Strengthening The Principle Of Good Faith

An indication of the requirements of good faith, justice and reasonableness appeared in

the continental law under the influence of the French revolution which took the ideas of

individual freedom, equality before the law and justice. These principles contributed to

the development of social relations, ideas about the free expression of the will of the

individual on the basis of contracts concluded with other persons. Almost all the systems

of law of countries that identify themselves with the Civil law contain one or more

provisions on good faith (Mackaay, 2011).

The principle of good faith also plays a central role in the law of mixed type (based on

both common and civil law). For example, in the state of Louisiana the principle of good

faith is applied in the law on general and conventional obligations, commercial law, family

law, property law, etc. (Lovett, 2018).

There is practically no single definition of the concept of good faith in the law. But

nevertheless this principle plays an important role, especially in the contract law

(Podshivalov, 2018).

In the common law each contract implies the existence of good faith in its interpretation

and enforcement. At the same time good faith is perceived as the absence of bad faith.

In continental law good faith is observed as a category of morality and as a requirement

that walks the line in the behavior.

The principle of good faith has a key role in the German law. German courts feel entitled

and even obliged to interfere in the contractual relations when these relations are unfair

to one of the parties. As for France, the principle of good faith in the contract relations

was present in it since the Code of Napoleon.

In our opinion, the importance of the principle of good faith proved by the UK experience,

where it has been unrecognized for a long period of time. As Mackaay notes, it was the

English lawyers who resisted this doctrine most of all. Unlike the US law, where good

faith is recognized in the pre-contractual legal relations, English law has treated this

institution critically (Mackaay, 2011). For example, the right of the court to challenge the

terms of the consumer contract ex post under the aegis of the fight against unfair contract

terms was recognized in England only in the early 1990s and then only under the pressure

JANUS.NET, e-journal of International Relations

e-ISSN: 1647-7251

Vol. 10, Nº. 2 (November 2019-April 2020), pp. 141-151

Between freedom of contract and the principle of good faith:

an inside view on the reform of private law of Kazakhstan

Kamal K. Sabirov, Venera T. Konussova, Marat A. Alenov

147

of obligations to the EU. This followed by a lively discussion among European and British

lawyers about how much economic integrity should prevail over cultural and national

identity (Collins, 1994).

Let us cite a few positions of the English courts of the early 1990s that regulate the

question of applying to the principle of good faith:

“There is no general doctrine of good faith in English law of contract.

The injured parties are free to act as they wish, provided that they

do not act in breach of the term of the contract” (JamesSpencer&Co

Ltd. v. Tame Valley Padding Co Ltd. [1998]).

“The duty to negotiate in good faith is unworkable in practice”

(Walford v. Miles [1992]).

In these cases, the court preferred the application of the principle of freedom of contract

and judicial competition. This was the principal position of English law, which elevated

the freedom of contract to the fundamental principle of the contract law for a long time.

Meanwhile it is obvious to lawyers of the civil law tradition that the absolute freedom of

the contract contradicts the fair consideration of the case.

However, the position of English courts in recent years has changed markedly. In the

case of Yam Seng PTE Ltd v International Trade Corporation (ITC) Ltd. [2013], the court

has spoken on the principle of good faith, recognizing that the traditional positions of

English law regarding good faith is unreasonable (Poole, 2012).

"Good faith" in the US law was finally normatively defined in the codification in the

Uniform Commercial Code (U.C.C.). In this document, an objective approach to

determining honesty was applied to the definition of this concept. So it’s a general

concept that can be compared not only with the principle of good faith in Roman-German

law, but also with evaluative concepts of rationality, justice and business ethics.

All this points to the importance of the principle of good faith.

The principle of good faith sum up business contracts, both in continental and common

law. For example, paragraph 4 of Article 8 of the Civil Code of the Republic of Kazakhstan

states that "good faith, reasonableness and fairness of actions of participants of legal

relations are assumed". Thus, good faith is implied in each contract concluded, as well

as the actions of the business entity. The principle of good faith is aimed at the formation

of a model behavior, based on the prevailing in the society ideas about the honest image

of thoughts, respect for the fair interests of others, the permissible degree of selfishness

in legal behavior (Mikryukov, 2013). If we overview the principle of good faith from this

perspective, it becomes clear that good faith underlies almost all private law and it is a

general principle of the private law.

In the civil legislation of the Republic of Kazakhstan good faith is used in two meanings:

objective and subjective. It’s a traditional position of German legal doctrine which

emphasizes good faith in the subjective meaning “guter Glauben” and in the objective

meaning “Treu und Glauben” (Wieacker, 1956).

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Vol. 10, Nº. 2 (November 2019-April 2020), pp. 141-151

Between freedom of contract and the principle of good faith:

an inside view on the reform of private law of Kazakhstan

Kamal K. Sabirov, Venera T. Konussova, Marat A. Alenov

148

In an objective meaning good faith is understood as a "good conscience" i.e. a moral and

ethical category and a principle of civil law based on moral and ethical beginnings. In the

subjective meaning good faith is understood as a concrete, subjective state of a person

and its compliance with certain criteria based on the moral ethical principle of good faith.

Also the reasonableness and fairness of actions of participants of civil legal relations are

supposed according to paragraph 4 of Article 8 of the Civil Code of the Republic of

Kazakhstan good faith. This norm marks good faith as a presumption.

It should also be taken into account that the category of good faith has a moral and

ethical content. Therefore, in the civil legislation of the Republic of Kazakhstan there is

no definition of the concept of "good faith" as in the case of such a definition, good faith

could not be used as a moral assessment of the issue of protection of civil rights.

However, the question remains unresolved of whether it is possible to consider the

requirements of good faith mentioned in the paragraph 4 of Article 8 of the Civil Code of

Kazakhstan as a principle of the law. At the same time, good faith in the civil legislation

of the Republic of Kazakhstan was not elevated to the category of the basic principles of

civil law mentioned in the Article 2 of the Civil Code of the Republic of Kazakhstan. This

causes a number of issues in the law enforcement practice.

Nevertheless, specification of the term “principle” in the text of the Civil Code of the

Republic of Kazakhstan in relation to the requirements of good faith could remove most

of the questions regarding the content of the basic principles of the civil law.

Taking into account the controversy over the issue of the relationship between the

concepts of “principles” and “basic principles” it seems necessary to clarify in the text of

the Civil Code that good faith is a general principle of private law. This would strengthen

the principle of good faith in the civil legislation of the Republic of Kazakhstan and have

a positive impact on civil circulation, significantly strengthening the protection of the

rights of its participants.

Moreover, the consolidation of good faith as a principle of private law will significantly

expand the scope of application of this institution, extending its effect to all civil legal

relations, including relations on creation, change and termination of civil rights and

obligations, protection of rights and interests.

Possible risk of such approach is that the courts will get a strong tool to regulate relations

in the form of good faith. This risk can be compensated through control over the judicial

practice which can be carried out by the Supreme Court of the Republic of Kazakhstan.

Currently the Supreme Court of the Republic of Kazakhstan has experience of

generalization and explanation of judicial practice. This experience can be extended to

the application of the principle of good faith by the courts.

In the Republic of Kazakhstan, legislative explanations of the Supreme Court are

attributed to the law in force and are adopted in the form of regulatory decisions, i.e. as

acts containing the norms of law, although the scientific doctrine has not developed a

consensus on the legal nature of such legal acts of the Supreme Court of the Republic of

Kazakhstan.

In addition to legislative explanations the Supreme Court of the Republic of Kazakhstan

also publishes collections with explanations of legal practice –Ylgi, which in Kazakh means

“sample”. Despite the fact that these collections are not official regulatory legal acts they

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e-ISSN: 1647-7251

Vol. 10, Nº. 2 (November 2019-April 2020), pp. 141-151

Between freedom of contract and the principle of good faith:

an inside view on the reform of private law of Kazakhstan

Kamal K. Sabirov, Venera T. Konussova, Marat A. Alenov

149

have a respective opinion for the courts. Some Kazakhstan scientists put forward the

idea of giving these collections certain legal force.

As a part of the ongoing reform of private law, we attempted to give these collections a

recommendatory character, a kind of analogue of the case law (Konussova and

Nesterova, 2016).

Unfortunately, this idea was not supported by Kazakhstani academic lawyers and at the

moment it’s no longer the part of the private law reform project.

However, the Supreme Court of the Republic of Kazakhstan may adopt regulatory

decisions that clarify the lower courts the practice of applying certain norms. It is

necessary to delineate the boundaries of the principle of good faith through these

resolutions which ultimately protects against the abuse of this principle by the courts.

In consideration of the foregoing, it is necessary to include good faith into the Article 2

of the Civil Code of the Republic of Kazakhstan, as well as to clarify it as a principle of

law. It should be borne in mind that the current article 8 of the Civil Code of the Republic

of Kazakhstan limits the application of the principle of good faith. Thus it seems necessary

to extend this principle to all civil relations including relations on the creation, change

and termination of civil rights and obligations.

Conclusions

In the course of the reform of the private law of the Republic of Kazakhstan it became

necessary to expand the principle of freedom of contract. In this regard, the developers

of the draft of the future law came up with a choice of a possible solution to the issue.

Initially, the most logical was the option of revising the mandatory norms of the civil

legislation of the Republic of Kazakhstan to expand the default beginnings of legislation.

However, this option required a lot of work to go beyond the project to implement certain

provisions of English law and could not cover all the norms of the civil law. In addition,

within the framework of one project, it is impossible to determine all possible options for

abusing the principle of freedom of contract or the exceptions to this principle.

In this regard, it was decided to stay on two possible options for expanding the principle

of freedom of contract.

Thus, a possible way of expanding the principle of freedom of contract is to transfer to

the courts right to interpret controversial rules of the law that do not contain indications

of mandatory or decretive nature. This option used in Russia and a number other states.

If the norm does not prohibit the approval of other provisions, nor a direct reference to

the right of the parties to agree on other provisions, then the norm shall be determined

by the interpretation of the court.

Alternatively it was possible to accept an approach that presumes the discretion nature

of the law if it does not have a mandatory prescription. Nevertheless, this approach may

entail cases of abuse of the principle of contractual freedom. However, this approach may

entail cases of abuse of the principle of contractual freedom, as it will require, as in the

first version of the revision of a large number of norms, in order to allow the parties to

withdraw from it. Ultimately, it was decided to stop on this option.

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Vol. 10, Nº. 2 (November 2019-April 2020), pp. 141-151

Between freedom of contract and the principle of good faith:

an inside view on the reform of private law of Kazakhstan

Kamal K. Sabirov, Venera T. Konussova, Marat A. Alenov

150

In order to smooth out possible negative effects from the expansion of the freedom of

contract, the principle of good faith was also significantly strengthened. Expansion of

the principle of freedom of contract will entail the inevitability of improving the system

of checks from the unfair behavior of participants in civil turnover. In this regard, the

principle of good faith may be a way to limit the principle of freedom of contract.

A significant difficulty was caused by the exclusion from the reform of private law issues

of strengthening judicial practice. Nevertheless, even the current legislative mechanisms

in the Republic of Kazakhstan can solve the problem of applying the principle of “good

faith”. In addition to regulatory changes it is necessary to improve systematically the

culture of enforcement. The country has gained experience in generalizing and clarifying

judicial practice under the leadership of the Supreme Court of the Republic of Kazakhstan,

this experience can be extended applying the principle of good faith.

At present, the draft implementation of the norms and provisions of the English contract

law into the civil law of the Republic of Kazakhstan is close to completion.

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