Good Faith in English Contract Law: Should the Law Retreat?

Abstract

English courts have traditionally adopted a highly restrictive approach when implying good faith terms in commercial contracts. However, a series of recent judgments has seemed to depart from this tradition. In this paper, first, I reinforce and expand upon arguments that doctrinal support for the implication of such terms is lacking. Second, I clarify why the semantic behaviour of ‘good faith’, contrary to what is typically claimed, does not amount to innocent context-sensitivity. I present a new account of what is distinctively objectionable about implying good-faith terms and also demonstrate its explanatory power. These results also inform the moral architecture of English contract law, suggesting that it should be more minimalist than it might have been thought. Good faith, Contract law, implication of terms, context-sensitivity, legal certainty.