Good Faith and Contractual Discretion
Soyez des n么tres pour une conf茅rence avec , Senior Research Fellow, Harris Manchester College, University of Oxford, et Emeritus Cassel Professor of Commercial Law 脿 la London School of Economics.
[La suite en anglais seulement]
The issue of good faith in the common law of contract is a matter of lively concern. It appears to be making some headway in common law countries but its progress is hard to measure owing to a lack of rigour in explaining its role and meaning. Does if amount only to honesty or does it embrace also fair dealing? Does it apply between parties of equal bargaining power? Whatever is meaning, does it apply across the board or is it limited to relational contracts and fiduciary relations? What is it exactly that advocates of a good faith duty are seeking to change when it comes to outcomes? Or is good faith not an agent of change but simply a device that helps us better understand our existing law of contract?
In this presentation, I shall assess whether good faith has an organising role to play in the common law of contract. Is the common law perfectly capable of dealing with problems that in civil law countries might be disposed of under the banner of good faith by means of techniques of implied terms and rules of interpretation? In English law, hard questions are currently being asked about whether there should be a general duty of good faith amounting to a term implied in law, as opposed to a duty that might be inferred as a matter of implied agreement in particular contractual contexts. All of those is taking place against the background of a dynamic debate about contractual interpretation and fidelity to the written word. At the same time, there is occurring a development, with some links to public law doctrines, that aims at controlling contractual discretionary powers. The key issue here is to determine whether a contractual provision amounts to an unqualified right or to a discretionary power. Is this good faith via the back door?
Finally, if time allows, some reference to the role that is played by good faith in international instruments (viz, the UN Sale Convention and the Unidroit Principles) may be considered. Is good faith here playing a symbolic or a practical role?
Organis茅 par le Centre Paul-Andr茅 Cr茅peau de droit priv茅 et compar茅, gr芒ce au soutien de la Chaire Peter M. Laing Q.C. et de la Chaire Wainwright en droit civil .
