Faith In Contracts Research Articles

THE APPLICATION OF GOOD FAITH IN CONTRACTS DURING A FORCE MAJEURE EVENT AND BEYOND WITH SPECIAL REFERENCE TO THE COVID-19 ACT 2020

Many parties face difficulties in performing contracts due to the economic dislocation since the outbreak of COVID-19. The extraordinary nature of this pandemic situation calls for good faith in contractual settings. The discussion of this paper focuses on the imposition in a force majeure event which will cause many contracts to be unenforceable. The research method used doctrinal analysis to discuss the force majeure clause in the context of the COVID-19 pandemic and the obligation of good faith in contracts. This paper will discuss the COVID-19 pandemic as a force majeure event, arguing that the rise of "good faith" in contract law and the application of "good faith" in contracts as a mitigation for a force majeure event. The paper will then present its conclusion and recommendations. The findings highlight the significance of applying "good faith" in the event of force majeure and beyond as a mitigating factor in alleviating uncertainty and unfairness.

Good Faith and Relational Contracts: A Scots-Roman Perspective

One of the most striking differences between the Civilian jurisdictions and the English common law has been the reluctance of the latter to adopt a general principle of good faith in contract. Scots law, however, often seeks to exercise the functions of good faith but does not recognise it as a general principle. In recent years, English law has begun to identify good faith as an implied term in “relational contracts”, a concept with sociological and economic origins. This article applies that development to Scotland by exploring the relationship between good faith and the relational contract from a Scots-Roman perspective. It will be shown that the historical sources of Scots contract law, from the Roman reception to the Institutional Writers, are fully compatible with relational contracts. It goes on to consider how a Scots law approach to good faith in relational contracts might orientate itself to the English authorities.

Buna-credință în legislația din Quebec

During the Quebec-Romania bilateral days held as part of the celebrations of the 160th anniversary of the Faculty of Law of the University of Bucharest, the speakers were invited to present the state of the law in their respective jurisdictions based on the common French root. Good faith was codified in the French Civil Code in art. 1134 C.N., a codification that was not repeated until 1994 in Quebec. Despite this lack of codification, the courts, influenced by French doctrine, began to recognize the importance and the various components of the concept of good faith in contract as of the 1980s. This text explains the developments of good faith in Quebec law, as well as the limits to it.

LA BONNE FOI ET LE PRECEDENT: BHASIN C. HRYNEW ET LA COMMON LAW CANADIENNE

En common law canadienne, la bonne foi dans les obligations contractuelles se limite à des domaines précis ; il n’y a pas d’obligation générale. Dans Bhasin c. Hrynew, la Cour suprême du Canada à cherché à pallier cette insuffisance en posant un principe directeur général de bonne foi et une obligation d’agir honnêtement dans l’exécution de ses obligations contractuelles. Elle laissait aux cours inférieures la tâche de déterminer les modalités de mise en application du nouveau principe. La Cour a utilisé la méthodologie de la common law pour sortir des limites analytiques restreintes de la common law et élargir la portée de la bonne foi. Or ce précédent n’a pas eu l’effet escompté. La définition limitée de la bonne foi donnée par la Cour suprême du Canada a conduit les cours inférieures à réduire Bhasin c. Hrynew à un cas d’espèce. Devant l’indétermination du principe et de sa portée, les cours d’appel ont utilisé une gamme de techniques pour le distinguer, entre autres, un recours aux règles de la common law pour limiter son champ d’application au lieu d’un recours à la nouvelle décision pour modifier les règles de la common law. Le Uniform Commercial Code (UCC) et le Code civil du Québec (CCQ), auxquels la Cour s’était référée pour justifier l’introduction du principe directeur général en common law fournissait une feuille de route pour son élaboration que les juridictions inférieures ont refusé de suivre.

A Vision of Good Faith as a Safety Valve in Contracts

This paper will try to approach the “strategic” role of the concept of good faith in contracts. Even though there are numerous attempts to discover the “tactical” value of this concept by describing all its meanings in the field of contracts, we must take a broader view and see the essential role of good faith in this area of private law. We will only discuss good faith as the equivalent of the German notion of “Treu und Glauben” , meaning good faith and fair dealing, and we will not try to approach the meaning of good faith as an erroneous belief, the equivalent to the German “guter Glaube”. We will also discuss the different approaches to this “objective” good faith, taken by different continental private law systems mainly from Germany, France and Romania, starting from very similar statutory provisions. We will conclude with a case study about the doctrine of frustration of contract as a possible application of the broader principle of objective good faith.

Comparative Study on Principles of Good Faith and Fair Dealing in Contract Laws of the United States of America and Bhutan

Good faith is an abstract concept, yet the existence and importance of good faith in contracts is undeniable. This paper discusses the relevance of good faith in the context of Bhutan where, despite being a society built on the basis of honesty and fairness, the first modern Bhutanese contract law does not contain the concept of good faith. After a thorough review of Bhutanese judicial decisions, and the nation’s development principle of Gross National Happiness (GNH), this paper makes the recommendation that the concept of good faith be re-applied into Bhutanese contract law. Recommendations are drawn after contrasting the Bhutanese context with the time-tested experience of the United States and its application of good faith in contracts. Through this discourse, the paper will provide a brief introduction to the Bhutanese legal system, its origins of good faith, unique policies, and legal practices.

Doctrine of good faith in contracts: A comparison between conventional and islamic laws

The doctrine of good faith is a vital issue amongst the contractual issues of this period. It is considered a main goal of every recognized law of contract system to be promoting good faith as well as fair dealing in forming and performance of contracts. Basically, it has been a common argument in supporting the notion of good faith that it helps in addressing bad faith manner in a clear and direct conduct, allow the law to safeguard the realistic anticipations of women and men as well as encourage a philosophy of contractual collaboration that would lead to economic efficiency. This study looks into the concept of good faith from both the conventional law and Islamic law (Shariah) to find to what extent both laws comply with each other. The study is doctrinal which utilizes descriptive approach of qualitative research methodology which relies on secondary data in form of text books, journals, newspapers, related websites etc. The study found that both the conventional law and Islamic law support the principle of good faith. Shariah recognized the principle of good faith as it asks the parties in a contract to abide by the requirement in various stages of the contract, especially sale contract. Thus, the concept of good faith should have the same application in both Islamic and conventional jurisdictions.

Yet Another Call for a Greater Role for Good Faith in the South African Law of Contract: Can we banish the Law of the Jungle, while avoiding the Elephant in the Room?

This article examines the current approach of the South African courts to the role of good faith or bona fides in contracts, as well as the courts’ stated reasons for this approach. The article specifically examines how arguments based on good faith have fared in the Constitutional Court to date, and the prospects for law reform to emanate from that court in the near future. The author suggests an understanding of good faith which he believes is in line with the Constitution of the Republic of South Africa, 1996 and argues that in terms of such an understanding of a robust good faith doctrine the legal fraternity or the courts can avoid some of the dangers that the judges of the Supreme Court of Appeal have warned about in this context in recent years. The author shares some concluding thoughts on the pressing need for law reform with respect to the role and presence of good faith in contracts.

Good Faith in Contract: Why Australian Law is Incoherent

This paper assesses the present state of good faith as a concept used in the resolution of contractual disputes under Australian law. Its thesis is that the current law is incoherent due to the wide variety of views expressed in the cases and the failure to integrate good faith within principles governing the interpretation of contracts and the implication of terms. The specific contexts to which the thesis is applied are the performance and termination of contracts.

Of Dorothy’s Dog, ‘Poststructural’ Fairy Tales … and the Real: Power, Poverty and the General Principles of the South African law of Contract

South African precedent does not allow for the consideration of the validity or enforceability of a contract in terms of the good faith principle. Yet, the principle of good faith permeates the foundational ideals and the spirit of South Africa’s post-apartheid Constitution. After re-emphasising the by now trite point that all legal rules have distributive consequences and that the common law represents a set of political choices, the article discusses the philosophical history of good faith and defends it as the primary transformative ethical device of the general principles of contract law, arguing that an elevated status for good faith in contract is implicit in the post-liberal reading of the Constitution and the ills that such a reading seeks to address. With reference to the work of Michel Foucault, the article concludes that curial consideration of the question whether a party to a contract has abused her bargaining power, forms a critical part of the transfo mative work that contract law is (also) constitutionally mandated to do.

Good faith and fair dealing in contracts formed and performed by electronic agents

The development of electronic agents that increasingly play an active role in the contract formation and execution process has highlighted the need for the creation of law-abiding autonomous agent systems. The principle of good faith is an important guideline for contractual behaviour which permeates civil law systems. This paper examines how this principle is applied both during the negotiation of a contract and during its performance. Selected examples from civil law literature of precontractual duties of good faith, and of precontractual behaviour that is deemed to be contrary to good faith, are discussed. This is followed by a discussion of the extent to which such duties are recognised, or such behaviour proscribed, in common law jurisdictions. Some common standards for precontractual behaviour in civil and common law systems are identified. There is then a parallel analysis of the principle of good faith in contract performance with a view to identifying common traits or standards between civil and common law systems. These standards, in the situation where contracts are being negotiated and/or performed by or through electronic agents, would need to be reflected in the way such agents operate.

Individualism, Cooperativism and an Ethic for European Contract Law

It was at a meeting held at the University of Trento in June 1994 that Reinhard Zimmermann suggested that good faith in contracts might make an interesting and fruitful topic for the so-called 'Common Core of European Private Law' project.' Six years later, with the publication of Good Faith in European Contract Law,2 Zimmermann's suggestion has been brought through to a successful completion. Whether one's interest is in comparative law or its methodology, the harmonisation of European private law, or good faith in contracts, the publication of this book is a major event and, whatever one makes of the product of this study, there is no question that Zimmermann, his co-editor Simon Whittaker, and the team of contributors are to be congratulated for conceiving of such a book and then delivering it so impressively. The book is a mine of informed analysis. Readers who want an introduction to good faith doctrines in German, French and (in its limited way) English contract law, will be considerably assisted by the co-editors' own opening contribution to the book. Similarly, if one's interest in good faith relates to its place in Roman law, or in contract law in the medieval ius commune, or in US contract law, then the contributions by, respectively, Martin Josef Schermaier, James Gordley, and Robert Summers will be required reading. However, the centrepiece of this book its distinctive contribution to comparative private law scholarship in general and to an understanding of good faith doctrines (or their cognates) in particular is the set of 30 case studies, discussion of which takes up the greater part of this volume. The purpose of the study, focused on the 30 hypothetical cases, is not so much to compare doctrinal technique and resource in contract law regimes across Europe; rather, the project is designed to reach beyond surface doctrinal difference to see how far there is a core of agreement as to good faith outcomes in Europe.

Reviews

The Modern Law ReviewVolume 63, Issue 6 p. 929-948 Reviews First published: 17 February 2003 https://doi.org/10.1111/1468-2230.t01-1-00304AboutPDF ToolsRequest permissionExport citationAdd to favoritesTrack citation ShareShare Give accessShare full text accessShare full-text accessPlease review our Terms and Conditions of Use and check box below to share full-text version of article.I have read and accept the Wiley Online Library Terms and Conditions of UseShareable LinkUse the link below to share a full-text version of this article with your friends and colleagues. Learn more.Copy URL Share a linkShare onFacebookTwitterLinked InRedditWechat Abstract Books reviewed: Byers (ed) The Role of Law in International Politics: Essays in International Relations and International Law Jones Private Enforcement of Antitrust Law in the EU, UK and USA Waldron Law and Disagreement Forte (ed) Good Faith in Contract and Property Law Lucy Understanding and Explaining Adjudication Jones Speaking for the Dead: Cadavers in Biology and Medicine Volume63, Issue6November 2000Pages 929-948 RelatedInformation

'Good Faith in Contracts' Revisited

'Good Faith in Contracts' Revisited

Bhasin v Hrynew - The New Duty of Good Faith in Contract

Over the past number of years, the law surrounding the requirement to operate in good faith in conducting contractual obligations has been a developing principle in common law countries from Australia, to the United Kingdom to Canada. In Canada, this principle has developed separately within the civil and common law legal traditions respectively. While the Quebec Civil Code has historically provided for an expectation of parties to a contract to operate in good faith, the common law in Canada has not been as clear. Prior to 2014, the Canadian common law duty to negotiate in good faith was an unsettled body of law, recognized in certain areas, but not across the discipline as a whole. It has only been since the Supreme Court of Canada decision in Bhasin v. Hrynew that this duty to negotiate in good faith has been outlined as a coherent set of guiding principles. Parties to a contract are now both bound by a general organizing principle of good faith in contracts and are expected to act honestly in the performance of their contractual obligations. While new to the Canadian common law, numerous cases have been quick to test the court’s interpretation of this change in scope to the law of good faith. As Canadian common law jurisprudence moves forward, this principle will continue to expand and develop.

Insurance: Warranties: Good Faith in Contracts of Fidelity Insurance

Insurance: Warranties: Good Faith in Contracts of Fidelity Insurance