Good Faith in English Contract Law

Abstract

Abstract Contrary to orthodoxy, good faith is no stranger to English law. Properly understood, we have been “speaking prose all our lives without knowing it.” The debate over whether to introduce a doctrine of good faith is therefore misconceived—the horse has bolted; the stable door has opened. Rather, the salient questions are: (i) How can a good faith requirement be justified? (ii) What role should it play in the evolution of English contract law? (iii) What does good faith require? And, (iv) how can we start to taxonomize its demands in order to stabilize its requirement? We support a humble role for good faith as an attitude of honesty, fair dealing, and fidelity to the contractual purpose that is, in turn, constitutive of the activity of contracting. These three aspects are manifest in many contract law rules that apply with different intensity and effect to the four categories of contracts that we identify. This is our proposed taxonomy “3 by 4.” Open recognition of this humble version of good faith will: make explicit the implicit ethical content of English contract law, enhance our understanding and organization of many apparently disparate rules, legitimize these rules and facilitate legal development in a manner consistent with common law incrementalism. This leaves open the policy questions of how far and how fast English law should travel down the road of good faith.