Paper's abstract

Laurent Aynès, The Obligation of Loyalty
The obligation of loyalty has been present in human relations from the times of chivalry until today, in individual relations as well as relations with the authorities. Negative side: the duty of loyalty prevents or hinders exercising one's rights. Loyalty and transparency, loyalty and sincerity. Loyalty can only be conceived in a relation. Loyalty and appearance. Duty of conscience or legal obligation? Loyalty is fundamental to ensure the consistency of the legal order. Essential technical rule. Permanence and variation of the obligation of loyalty in three types of legal relations, from the smallest to the greatest alterity: I. - Relations of confidence: the obligation of loyalty identifies with the duty to protect the interest of the other, even against one's interest (trust, society, publishing, surety bond...) II. - Relations of distrust: each partner protects its own interest. The loyalty identifies with the predictability of the behavior (negotiation, execution, breach of contract) III. - Conflicting relations (trade, financial markets, civil or criminal trial): the duty of loyalty, far from disappearing, identifies with the respect of the game rule, previsibility instrument for the actors. Conclusion : the common element, beyond from the down-to-earth content which varies according to the situation, is the search for previsibility: each actor behaves according to the signals sent by the other actor. Disloyalty consists in sending deceptive signals, thereby ruining the confidence based on them. The remedy is not only to impose a compensation but also to neutralize the legal prerogative disloyally exerted.

Key Words : obligation, loyalty, foreseability
t. 44, 2000 : p. 195-204

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