GOOD FAITH PERFORMANCE IN CANADIAN CONTRACT LAW

Abstract

IN Mellish v Motteux (1792) 170 E.R. 113, 157, Lord Kenyon observed that “in contracts of all kinds, it is of the highest importance that courts of law should compel the observance of honesty and good faith”. This passage echoes a similar statement by Lord Mansfield 25 years earlier in Carter v Boehm (1766) 97 E.R. 1162, 1910. Despite these early statements of principle, the modern common law has been notoriously hostile to the notion that contracting parties are under a general duty of good faith in the performance of their obligations (see W.P. Yee, “Protecting Parties' Reasonable Expectations: A General Principle of Good Faith” (2001) 1 Oxford U. Commonwealth L.J. 195), and there is certainly “no firm line of modern cases to support such an obligation” in English law (see L.E. Trakman and K. Sharma, “The Binding Force of Agreements to Negotiate in Good Faith” [2014] C.L.J. 598). Nevertheless, some recent decisions in Australia, Canada, and England have begun to imply obligations to perform certain types of promises, in certain classes of contracts, in an honest manner, crafting, in the words of Lord Bingham, “piecemeal solutions in response to piecemeal problems” (Interfoto Picture Library v Stiletto Visual Programmes Ltd. [1989] 1 QB 433, 439 (CA)). A recent English example is Yam Seng Pte Ltd. v International Trade Corporation Ltd. [2013] EWHC 111 (QB) in which Leggatt J. found there to be an implied duty of “honesty” and “fidelity to the bargain” in the context of a long-term distribution contract. Importantly, His Lordship emphasised that whether such obligations can be implied is a matter of construction, which involves ascertaining the parties' objective intentions through conventional techniques such as the principle of business efficacy. As implying such obligations depends entirely on the context of each contract (at paras [137]–[143]) there is, at present, no general principle of good faith performance in English contract law, despite some case-by-case recognition (see Mid-Essex Hospital Services N.H.S. Trust v Compass Group UK and Ireland Ltd. [2013] EWCA Civ 200, at [105], [150]).