Is the courts’ approach to good faith obligations in English contract law coherent and justified?

Title: Is the courts’ approach to good faith obligations in English contract law coherent and justified?

 Is the courts’ approach to good faith obligations in English contract law coherent and justified? The approach to good faith obligations in English contract law is a complex and evolving area of law. The concept of good faith is not explicitly defined in English contract law and has been developed through case law. The courts have generally taken a narrow approach to the imposition of good faith obligations, with the exception of certain specific types of contracts such as insurance contracts and franchise agreements. The courts have also been reluctant to impose a general duty of good faith in all contracts, as they believe that this could undermine the principle of freedom of contract. Some legal scholars have criticized this approach as being inconsistent and lacking a clear theoretical basis. However, others argue that the courts' approach is coherent and justified, as it allows for a flexible and pragmatic approach to dealing with the complex issues that can arise in contractual relationships.

Is the courts’ approach to good faith obligations in English contract law coherent and justified?

Abstract The courts’ approach to good faith obligations in English contract law is marked by a rejection of introducing good faith as a principle of general applicability to contracts. This dissertation will argue that English contract law should continue in its current path. English contract law remains the neutral law of choice for many contracting parties all over the world, and English jurisdiction or arbitration is very commonly adopted in major commercial contracts with non-English parties who bring their cases to the English Commercial Court by choice. The courts’ approach is triggered by the lack of clarity in the definition and scope of good faith, a concept derived from civil law systems, where it also lacks a universal definition despite being included in their Civil Codes. Furthermore, the role of equity in English law prevents unfairness in contracts; established contract common law principles allow the courts to dispense justice without interference with freedom of contract or with contract performance. This precludes the need for good faith becoming a principle of general applicability in English contract law. There appears to be three main functions linked to good faith in civil law systems: the interpretation of the contract; supplementation of the contract, and the prevention of abuse of rights. However, the fact that the common law as developed in England and Wales is able to achieve the same result by way of well-established and developed legal rules demonstrates that the approach of the courts to good faith obligations in English contract law is coherent and justified. There is growing international recognition of the principle of good faith in some common law jurisdictions such as the US, where it has been incorporated into the Unified Commercial Code; however, case law shows that the concept remains unclear.   Word Count: 292 words               CONTENTS   Acknowledgments…………………………………………………………………………..   2   Abstract………………………………………………………………………………………  3   Introduction…………………………………………………………………………………..5   Chapter 1- Good faith in English contract law…………………………………………….5 1.1 Background………………………………………………………………………………. 5 1.2 The approach of the courts to good faith obligations in English Contract law………….   8   Chapter 2 - Coherence and justification in the courts’ approach to good faith obligations under English contract law……………………………………………………10 2.1 The meaning of good faith………………………………………………………………..10 2.2 Good faith at contract formation………………………………………………………… 13 2.3 Good faith as an implied term…………………………………………………………… 19 2.4 Good faith in the content of contracts…………………………………………………… 20 2.5 Good faith as an express obligation……………………………………………………….22   Chapter 3 – Further analysis………………………………………………………………..26   Conclusion…………………………………………………………………………………    27   Bibliography………………………………………………………………………………    29                   Introduction The concept of good faith existed in England as a consequence of the lex mercatoria, which gained wide-spread acceptance amongst trading nations. However, by the eighteen century, the lex mercatoria was fully integrated into English law and good faith failed to develop as a principle of general applicability to contracts. However, Britain’s membership to the European Union (EU) and the primacy of EU law developed by the European Court of Justice brought the debate back into English contract law by virtue of the mechanism adopted by Directive 93/13 on unfair terms in consumer contracts; as a member state of the EU at the time, the UK was under an obligation to implement the Directive. Nevertheless, good faith is a civil law concept, and it sits uncomfortably under English common law, particularly because it is an all-encompassing term that lacks universal definition and because it acts contrary to the well-established principle of freedom of contract under English contract law. This has prompted the English courts to reject the concept of good faith particularly in commercial contracts, at contract formation level but also in relation to contract performance, and regardless of whether it exists as an implied or express term in a contract. This dissertation will argue that the courts’ approach to good faith obligations in English contract law is coherent and justified, and it will provide reasons for this argument by examining the courts’ decisions in respect of good faith clauses in contracts. It will also show that the existence of equity and equitable remedies and protections towards the parties to the contract in English law, in addition to the existence of well-established legal principles and precedent, make good faith clauses in contracts surplus to requirements.   Chapter 1 - Good faith in English contract law 1.1 Background English contract law has been influenced by Britain’s membership of the European Union (EU) for over forty years; EU law was said to prime over national law and as a result, the implementation of EU Directives into English law introduced the element of “good faith” into contract law.[1] EU law is mostly based on Continental Europe’s civil legal systems. Problematically, the concept does not necessarily sit comfortably within English law, and the difficulty extends to contracts between parties in other jurisdictions because English contract law remains the neutral law of choice for many contracting parties all over the world, and English jurisdiction or arbitration is very commonly adopted in major commercial contracts with non-English parties; [2] those parties bring their cases to the English Commercial Court by choice.[3]   The concept of good faith is not entirely alien to English contract law; it became accepted in broad terms under the lex mercatoria, which was developed mostly in Continental Europe; Britain had little influence over its development at that stage.[4] Lex mercatoria was applied by special local courts when settling disputes between merchants; the courts were headed by merchants themselves who would dispatch the cases quickly, apply flexible rules of evidence and procedure, and uphold principles of good faith and fairness.[5] The lex mercatoria gained wide-spread acceptance by trading nations in Europe, thus acquiring an international character, and becoming integrated into the various countries’ legal systems; this removed the flexibility from the original lex mecatoria, which became subjected to national law rules and non-merchant judges.[6]   Although originally the international business of the merchant courts in England was dispensed by the Court of the Admiralty; this was nominally a civil court, thus receptive to the lex mercatoria; however, by the seventeenth century the jurisdiction of the Admiralty Court was taken over by the common law courts and the lex mercatoria was fully incorporated into the common law by the eighteenth century.[7] Lord Mansfield became an influential figure in its incorporation, and attempted a definition of good faith in Carter v Boehm[8] by stating  that good faith prohibited either party to conceal what “he privately knows”, in order to entice the other party into the bargain due to not knowing the true facts and believing the contrary.[9] However, he also pointed out that either party could be innocently silent to the grounds open to both of them and thus, they would have to rely on their judgment.[10] It is submitted that this definition shows the difficulty on defining good faith, and it shows not just its subjective nature but also the problem faced by an English court where trying to apply it.   Furthermore, Professor Beale argues that Lord Mansfield’s comments limited the duty of good faith to a duty of disclosure of what one party knows, in cases where the other party believes the opposite.[11] Nevertheless, the concept of good faith is inconsistent with later authority, such as Smith v Hughes,[12] where it was stated that to prove mistake, the knowledge of one party that the other party is entering into the contract under some sort of mistake is not enough; the mistake must relate to the terms of the contract.[13]  By the nineteenth century good faith was not a principle of general applicability to contracts, nor was it found in contemporary legal textbooks such as Anson’s (1879) Principles of the English Law of Contract and of Agency in Relation to Contract, or Pollock’s (1876) Principles of Contract at Law and in Equity.[14] Therefore, it is submitted that the concept of good faith did not develop within or even alongside English contract law; this makes any rejection of the concept by the English courts coherent and justified.   There is only one exception where good faith is accepted by the courts in English contract law, and that is in respect of insurance contracts, which are subject to a duty of “utmost good faith” by virtue of s 14 of the Insurance Act 2015.[15] Furthermore, the 2015 Act is not retrospective, therefore contracts of insurance and reinsurance under the Marine Insurance Act 1906 entered into prior to August 2016 are contracts of “utmost good faith”; this means that a company or business that wants to purchase reinsurance is under an obligation of disclosure of material facts towards the insurers, and an obligation to refrain from making material misrepresentations; this is an onerous provision that distinguishes insurance contracts from other contracts under English law where the principle of caveat emptor applies.[16]       1.2 The approach of the courts to good faith obligations in English Contract law The position of the English courts in respect of good faith clauses in contracts can be seen in Walford v Miles.[17] The case involved the purchase of a business and the property from which it operated; the seller requested that the buyer provide a letter of comfort from the bank as a collateral agreement, confirming a loan facility as a condition for the seller to stop negotiating with a third party. The buyer complied with the condition, and the seller stopped negotiations with the third party; however, while still negotiating with the buyer, the seller withdrew from the negotiations and instead sold to a third party.[18]  The buyer brought action against the seller for breach of the collateral agreement. The Court of Appeal ruled that a duty to negotiate in good faith was unworkable in practice and inconsistent with the position of a negotiating party under English law, that is, either of the negotiating parties was entitled to break off the negotiations; this could happen at any time and for any reason.[19] The agreement was one to negotiate, thus unenforceable.   Although in Walford the duty of good faith was implied, the position of the courts is the same even if the contract contains an express provision to negotiate in good faith, as was the case in In Petromec Inc v Petroleo Brasileiro SA Petrobas (No. 3).[20] In this case, the contract contained an express clause requiring the parties to negotiate in good faith in respect of the costs of contractual extras.[21] Langmore LJ stated that the objections to enforce negotiations in good faith under English contract law are that: (i) it is an agreement to agree; (ii) it cannot be determined whether a termination of the negotiations is done in good or bad faith, and (iii) it is not possible to quantify a loss caused by the breach of good faith.[22] As such, in pre-contractual negotiations there is a difficulty fitting good faith clauses into English contract law.   Nevertheless, the decision in Walford has been criticised by Neill.[23] He states that Lord  Ackner refused to follow the decision of the US Court of Appeals, Third Circuit, Channel Home Centers v Grossman [24] which had been relied upon by the counsel for Walford; according to Neill, Lord Ackner’s position was that a duty to negotiate in good faith is inherently “inconsistent with” and “repugnant to” the adversarial position that the parties take during negotiations, and second, that the obligation of good faith cannot be policed.[25] He argued that the distinction made by Lord Ackner between an agreement to negotiate a contract (which was invalid) and an agreement to use best endeavours (which was valid) was untenable because both types of obligation are enforceable.[26]   Therefore, Neill argues, Lord Ackner’s approach is highly problematic because the parties to the contract freely entered into an undertaking to use their best endeavours to agree.[27] His argument is supported by Hillas & Co v Arcos, [28] where the House of Lords stated that if the parties agree to negotiate in the hope of reaching a legal contract, the only bargain is to negotiate; the negotiations may be fruitless and end up before a valid legal contract is formed; yet, as stated by the Court, even then, in strict theory, there is a contract  to negotiate if there is good consideration; however, if one party repudiates the contract the damages may be nominal unless a jury think that the opportunity to negotiate had some substantial value to the injured party.[29]   However, later English cases moved away from the Hillas decision; two cases can be used as an example: Courtney and Fairbairn Ltd v Tolaini Brothers (Hotels) Ltd [30] where Lords Denning and Diplock disagreed with the dictum in Hillas, due to English law not recognising a contract to negotiate because it was too uncertain to have any binding force.[31] The other case is Mallozzi v Carapelli SpA[32] where the Court of Appeal was bound by the decision in Courtney.   The fact is that there is a plethora of case law that follows the Walford decision. For instance, in Ing Bank NV v Ross Roca SA,[33] Rix LJ stated that “outside the insurance context” there is no general obligation to bring difficulties or defects to the attention of the other party, and caveat emptor remains a basic facet of English commercial law; he further stated that there is no general notion of a duty of good faith in commercial affairs.[34] Perhaps the most salient point made by Rix LJ was that instead of good faith, there were many individual concepts of English common law, such as reasonableness; waiver or  estoppel which could have the same effect.[35]   It is submitted that this is an important reason for rejecting the idea of introducing good faith as a principle of general applicability to contracts in English law: there are comparable concepts in the common law that could be rationalised as expressions of an underlying principle of good faith; however, unlike good faith, they are clearly defined and developed through case law; they constitute a strong conceptual basis for a number of rules that aim at preventing or remedying unfairness.[36] From that perspective it is submitted that the courts’ approach to good faith obligations in English contract law are coherent and justified.     Chapter 2 - Coherence and justification in the courts’ approach to good faith obligations in English contract law 2.1 The meaning of good faith At its narrowest, good faith is simply synonymous with lack of bad faith, according to Chen-Wishart.[37] She argues that to give good faith a minimum independent content, the starting point must be the recognition that good faith is a demand that in a contract, the parties to a contract must exert a limit on their self-interest and have some regard for the other party.[38] There are equivalent concepts and principles under English contract law; for instance, Lord Steyn commented in First Energy (UK) Ltd v Hungarian International Bank Ltd[39] that an aim under English contract law is that the reasonable expectations of honest men must be protected, but this is not a rule or a principle of law, and it does not give a judge licence to move away from binding precedent.[40]  Therefore, under the common law, precedent is more important than non-legal principles, but nevertheless, the common law has equivalent accepted legal standards to “good faith”, such as “reasonableness”, “unconscionability”, “fairness”, “equity” and “justice”.[41]  The existence of those well-established standards justifies the courts’ approach to good faith obligations in English contract law.   The need for a definition of good faith arose from the mechanism adopted by Directive 93/13 on unfair terms in consumer contracts; as a member state of the EU at the time, the UK was under an obligation to implement the Directive, which states under Article 3 that a standard contract term shall be regarded as unfair “if contrary to the requirement of good faith,” it causes significant imbalance in the parties’ rights and obligations under the contract, to the detriment of the consumer.[42] The operation and definition of good faith was not clear from the start, nor was its applicability under English contract law.[43] According to Professor Beale, good faith comprises a procedural aspect, which makes the supplier consider the consumers’ interests; additionally, he states that it has a substantive aspect because some clauses would contain an imbalance and they should always be treated as contrary to good faith, therefore unfair.[44]   In Director General of Fair Trading v First National Bank,[45] the first case to reach the higher courts concerning the implementing legislation (Unfair Terms in Consumer Contracts Regulations 1994), Lord Bingham stated that good faith meant “fair and open dealing”.[46] Arguably, that is a very subjective interpretation, and it can prove difficult if not impossible to enforce. Good faith is generally considered to be a civil-law concept[47] but its lack of standardised definition means that the scope of the duty varies from country to country.[48] This does not make good faith a uniform duty nor does it provide legal certainty.   In respect of other jurisdictions, Whittaker and Zimmermann argue that the concept of good faith is of vital importance in some legal systems; in Germany for instance, it is so strong that it overshadows the contractual relationship of private parties.[49] There is a provision in the German Civil Code stating that contracting parties have to observe good faith in both negotiation and performance of the contract; it requires more than just acting reasonably, it requires a relationship of trust in commercial dealing; nevertheless, despite a large amount of case law on the matter, there is no established definition of what good faith requires under a German contract.[50] There is a similar provision under the French Civil Code, which is equally lacking in definition.[51]   Some common law jurisdictions have embraced the concept of good faith. In the United States (US) for instance, contracts which fall under the Uniform Commercial Code (UCC) carries an obligation of good faith in the performance or enforcement of the contract; under the UCC good faith is defined as “honesty in fact in the conduct or transaction concerned”, and for a merchant it is defined as “high standards” and it means “honesty in fact and the observance of reasonable commercial standards of fair dealing in the trade.[52] However, looking at case law, it appears that the meaning of good faith in the US differs from the concept as conceived by the EU. In the case of Market Street Associates Limited Partnership v Frey[53] it was stated that the contractual duty of good faith is not some welfare-state paternalism, or an altruistic strain in contract law.[54] It was further stated that when a person signs a contract, there is no requirement to become altruistic towards the other party, nor are parties to the contract required to adopt an attitude of substantive impartiality between their interests and the interests of the other party to the contract.[55] As such, what constitutes good faith remains unclear under the UCC.   In international commercial law, Unidroit contracts contain a clause stipulating that in respect of their rights and duties under the contract, the parties must act in accordance with good faith and fair dealing.[56] Contrastingly, Nicholas argues that English contract law tolerates “a certain moral insensitivity” in favour of economic efficiency,[57] and according to Goode, English contract law values “predictability of the legal outcome of a case” more highly than absolute justice.[58] In other words, the courts in England aim to apply precedent and they are bound by it.   This dissertation disagrees with  Nicholas’ view; ultimately, the aim of a contract law is to deliver on a contract’s agreed terms (economic efficiency), it is not to correct a bad bargain struck by the parties to the contract by citing an abstract and subjective concept such as good or bad faith; however, if the bad bargain has been caused by a vitiating factor, equity will correct it by way of an equitable remedy, and the courts have discretion to order that remedy; thus, English contract law does not require the concept of good faith. Equity is not a legal tool available in civil law systems; equity under English law does not have the same meaning as équité in French, equidad in Spanish or Billigkeit in German.[59] Equity under the common law has been and continues to be developed by the courts and applied at the courts’ discretion; equity represents, according to Dessens, “what the conscience or the inner forum considers to be in accordance to justice”; a “predisposition to give to each one his equal share”; “a writing of the law in the name of natural justice”.[60] Arguably, the lack of a law of equity makes it more pressing for civil law jurisdictions to rely on good faith but the lack of  standardised definition makes good faith difficult to apply. From that perspective, the courts’ approach to good faith obligations in English contract law are coherent and justified.   2.2 Good faith at contract formation The reticence of English courts to recognise a general duty of good faith at contract formation can be attributed to a reluctance to interfere with principles of freedom of contract in addition to finding it difficult to define what good faith is.[61]  Even jurisdictions that openly recognise the duty of good faith “have no common concept of goodness or good faith” according to Lord Bingham in Director General of Fair Trading v First National Bank.[62] Perhaps the closest equivalent term to good faith under English law is bona fides, which derives from Roman law including into a contract an exceptio doli clause, stating that “in this particular matter nothing has been or is being done in bad faith by the plaintiff”.[63] As such, the use of recurring to exceptio doli in a contract was the equivalent to the idea of good faith from the defendant’s perspective.[64]   However, according to Leggatt, it has become more common to find before English courts contracts that include clauses of “best endeavours”, “reasonable endeavours” or “good faith”; in respect of negotiations, a good faith clause may require the parties to hold discussions or negotiations or to find an agreed solution should circumstances change in some material way.[65] The question then is, Leggatt argues, what is the legal effect of meeting to discuss in good faith any material circumstances affecting the negotiations, for instance reviewing the prices set in the agreement? What does this clause oblige the buyer and the seller to do? The answer under English commercial law is “nothing”, because the clause is too uncertain to enforce.[66]   Looking into the formation of valid contracts under English law (offer, acceptance, intention to create legal relations, consideration)[67] it is clear that until the unequivocal terms of a contract are accepted, negotiations are simply pre-contractual discussions which may or may not lead to a contract; thus, English contract law does not recognise a contract to enter into a contract because it cannot be enforced; a court of law cannot assess the damages of breaching contract terms that have not been established; at the time of negotiations and under freedom of contract, the parties are free to set terms; once the terms are set, and accepted by both parties, there is a legally enforceable contract.[68]   In pre-contractual situations, as stated by Lord Ackner in Walford, the position of the negotiating parties is adversarial, and this entitled them to pursue their own interests under the contract; it would be impossible for the court to police such agreement or to determine whether or not it has been breached because the parties did not negotiate in good faith.[69] He further stated that imposing a duty on the parties to negotiate in good faith is “an unworkable practice”; and he described it as “inherently inconsistent with the position of a negotiating party”; additionally,   Despite good faith not existing as a general duty under English contract law, parties are nonetheless entitled to incorporate good faith clauses into contracts; the English courts have strived to give effect to such provisions, but the lack of definition of good faith has led to interpreting the specific words chosen by the parties on a case to case basis, in order to ascertain the intention of the parties.[70] It is submitted that this approach is simply the analysis used by the English courts, which consists of looking at all the circumstances surrounding the making of the contract and available to the parties (the factual matrix) to determine how the language of the contract would be understood by a reasonable person,[71] as determined in Investors Compensation Scheme Ltd v West Bromwich Building Society.[72]   English contract law  requires strict adherence to contracts, and common law lawyers tend to regard good faith as an invitation to judges to ignore the duty of legally reasoned decisions and to replace it with an unanalytical incantation of personal values, according to Professor Bridge.[73] He argues that good faith is a standard not a rule, therefore it is vague and diffuse by nature;[74] however, there are concepts under the common law such as foreseeability and reasonableness which are equally vague. According to Tancelin, the fact is that the common law is not amenable to codification and a common law lawyer prefers concepts such as expectations, implied terms and interpretation.[75] Common law lawyers, according to Clarke, favour the familiar territory of strict precedent, concrete categories, precise rules, literalist interpretation and conservative legalism in which good faith cannot flourish.[76]   There is certainly a divide, a pressure-point between the common law and the civil law in the differing attitudes towards the concept of good faith; this was a matter of difficulty in the evolution of the Convention on Contracts for the International Sale of Goods (CISG).[77] One of the arguments is that the common law turns its back on ethical conduct in respect of contract law; however, this view is denied by the fact that equitable remedies such as injunctions and specific performance can be withheld by the courts if the claimant does not come with clean hands, as seen in the recent case of  ORB arl v Ruhan.[78] There is a well establish scope of the principle demarcated and redefined through years of case law, such as Fili Shipping Company Ltd v Premium Nafta Products Ltd; Fiona Trust & Holding Corporation v Privalov,[79] where  the court stated that coming to the court with clean hands does not mean a general depravity; it must have an “immediate and necessary” relation to the equity sued for.[80] Another example can be found in Tinsley v Milligan[81] where it was stated that equity will not assist a claimant to recover his property if he does not come to equity with clean hands.[82] From that perspective the courts’ approach to good faith obligations in English contract law are coherent and justified.   Nevertheless, should a contract contain a requirement of good faith, the courts can either upheld it or dismiss it; it is thus not a clause that carries legal certainty under English contract law. In Berkley Community Village Ltd v Pullen,[83] the Court upheld an express term good faith clause in a property development contract. The defendants owned a farm in Kent, with 840 acres of land; they agreed with the claimant to use its development expertise to maximise the potential of around 520 acres of the defendant’s land for development; in exchange, the claimant would receive a fee upon sale of the land with planning consent.[84]   The claimant spent time and effort promoting the land for development, thus enhancing its chance of obtaining planning permission of considerable value; the claimants sought to sell the land prior to planning consent being granted, thus depriving the claimant of a fee; the third schedule of the agreement had a clause 33 stating: “In all matters relating to this agreement the parties will act with the utmost good faith towards one another and will act reasonably and prudently at all times”.[85] According to the Court, a sale of the kind envisaged breached the obligation under clause 33 and ordered relief by way of an injunction restraining the sale.[86] Despite upholding the good faith clause, it is submitted that the Court’s approach to good faith obligations in English contract law was not necessarily coherent or justified, because the case could have been resolved by way of anticipatory breach of contract.   Morgan J stated [87]  that there are three categories of anticipatory breach: (i) if before the time arrives by which a party is bound to perform a contract, that party expresses an intention to break the contract; (ii) where the contracting party disables himself from performing an obligation that falls due at a later date; (iii) where the obligation to be performed at a later date is a contingent obligation.[88] On the facts, the breach went to the root of the contract, and it was a fundamental breach because it affected the very nature of the contract which was to maximise the potential of around 520 acres of the defendant’s land for development, for a fee upon sale of the land with planning consent; it frustrated the commercial purpose of the venture.[89] According to the test in Hongkong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd,[90] the occurrence of the event (the defendant’s intention to sell the land prior to planning consent being granted) deprived the claimant, who had further undertakings to perform (to obtain planning consent) of the whole benefit (the fee) which was the intention of the parties when they entered into the contract.[91]   Therefore, it is submitted that the good faith clause was unnecessary; an established contract law principle such as anticipatory breach probably would have produced the same result (an injunction to stop the sale), or the Court could have considered a restitutionary remedy for breach of contract such as quantum meruit as reasonable remuneration for services rendered.[92] This shows that the common law, according to Chen-Wishart, “is animated by good faith through and through”.[93] It also shows that the courts’ approach to good faith obligations, of taking a “piecemeal” approach is coherent and justified. In Interfoto Picture Library v Stilletto Visual Programmes Ltd,[94] Lord Bingham stated that although most legal systems outside the common law world recognise an overriding principle that in making and performing contacts the parties should act in good faith, the effect of the requirement is simply to play fair, the English courts do not commit to that principle, instead finding piecemeal solutions in respect of problems of unfairness.[95]   Furthermore, in MSC Mediterranean Shipping Co SA v Cottonex Anstalt [96] it was stated that it is a better course for the law to develop along established principles than to encourage judges to look from a principle [such as good faith] drawn from cases “of disparate kinds”; according to Moore-Bick LJ, this would be a principle that could be invoked to either undermine or support the terms of an agreement.[97] As such, it is submitted that the effect of good faith as an overriding principle can be to correct bad bargains, rather than to uphold freedom of contract. The reality is and should remain that English judges show a preference for the strict application of the terms of a contract, rather than tempering their effect on the grounds of fairness, as seen in Union Eagle ltd v Golden Achievement Ltd[98] in respect of refusing specific performance of a contract for the sale of land.[99] In this case, the reason for the court’s refusal was that timing for performance of the contract had been made expressly of the essence and the purchaser had paid the price 10 minutes late.[100] It is submitted that this approach is coherent and justified because the strict application of the terms of a contract is the essence of the performance of a contract, and only the intervention of vitiating factors should be taken into account to deviate from that expected performance.   Under English contract law a party’s reasonable reliance can be protected by many doctrines without the need to rely on good faith, inter alia: (i) the bar on revocation of unilateral offers under certain circumstances; according to Chitty, a unilateral offer can be accepted “as soon as the offeree has unequivocally begun performance of the stipulated act or abstention” therefore the offer cannot be withdrawn.[101] However, as stated by Chen-Wishart, a contract is concluded on acceptance whilst in a case of a unilateral offer, the offeree cannot enforce the contract until the stipulated performance is completed;[102] (ii) imposing collateral or ancillary terms or contracts to ensure that the parties are held to the reasonable expectations they create in a contract such as the duty to consider; this duty under s 71 of the Consumer Rights Act 2015 is referred to as the “fairness test” and it imposes a duty on the court to consider whether a term is fair even if the issue is not being pleaded by the consumer.[103]   Furthermore, the use of contracts collateral to the terms of the contract protects the parties because if properly drafted the claimant must show that the assurance was so important that he would not have entered the contract but for the assurance;[104] thus, as determined in Mendelssohn v Normand Ltd [105]collateral contracts and terms are justified under English contract law. In view of this analysis, it is submitted that the courts’ approach to good faith obligations in English contract law are coherent and justified.   2.3 Good faith as an implied term Implied terms are common under English contract law; Nicholas comments that in cases where there is a problem in a contract, the common law lawyer could under some circumstances rely on an implied term; contrastingly, he argues, a civil lawyer is likely to resort to a rule such as the requirement of good faith.[106] However, the English courts have rejected the concept of good faith acting as a general organising principle under English contract law; the exception can be that if the contract in question is a “relational” contract it may be possible to use the concept of good faith as an aid of construction of the contract.[107]   Relational contracts, as stated in Yam Seng Pte Ltd v International Trade Corp Ltd[108] may include some joint venture agreements[109] but in general, as stated in a High Court case, Cathay Pacific Airways Limited v Lufthansa Technik AG,[110] the law on relational contracts has not yet reached a point of clarity; it was stated by the defendant that if a contract is properly regarded as relational, usually there is an implied term of good faith; however, the implication is not automatic because it is heavily dependent on the surrounding context of the contract and any express terms which may prevent the implied term to limit the scope of its application.[111]   Relational contracts were endorsed as long-term contracts by the High Court in Bates and others v Post Office Ltd (No.3);[112] the court stated that relational contracts are established in English law and that a duty of good faith is implied in those contracts; good faith in turn encompasses issues of transparency, co-operation, and trust and confidence; the duty requires the parties to refrain from conduct that a reasonable and honest person would regard as commercially unacceptable.[113] Nevertheless, commercial contracts do not need to have a good faith clause to be understood as requiring honesty in their performance, and the existence of relational contracts in English law is debatable; in Globe Motors Inc v TRW Lucas Variety Electric Steering Ltd[114] for instance, the Court of Appeal rejected the existence of such contract.[115] In general, the position of the courts in respect of an implied duty of good faith is that it does not arise based on the strict tests for the implication of terms in fact, except for example if it gives the contract commercial or practical coherence, as seen in UTB LLC v Sheffield United Ltd.[116]   2.4 Good faith in the content of contracts Berlin argues that there is a positive and a negative aspect to freedom of contract; the former, positive liberty, is the freedom of the parties to create a binding contract and decide the rights and duties amongst them while at the same time reflecting their autonomy and free will; negative liberty he defined as the freedom from outside intervention.[117]   In principle, English law is reluctant to interfere with an agreement the parties entered into freely; however, the courts also have recourse for restraining the parties’ self-interest and to exert regard for the counterparties interest; this is essential to achieve fairness in cases where the parties have very unequal bargaining power which is inherent in certain types of contract such as employment contracts. Examples of that restraint can be seen, for instance, but not exhaustively, in the distinction between terms and representations that determine the remedy available to the injured party, and which is made based on whether it is fair under all the circumstances for the party making the statement to be liable for its accuracy.[118] Terms are enforceable and a breach leads to a claim for damages and/or to terminate the contract; representations are statements that assert the truth and invite reliance, but which do not give an enforceable guarantee of its truth.[119]   Another way to protect the party with lower bargaining power is the incorporation of onerous terms in unsigned documents, which require reasonable notice to the other party; the more onerous, the more notice is required,[120] as determined in Interfoto Visual Library. In this case, the court ruled that the clause in question had not been incorporated into the contract because the claimants had done nothing to bring it to the attention of the defendants; therefore, the clause was not enforceable.[121] The court’s ruling was based on fairness and reasonability. Arguably, this has the same effect as good faith, but unlike good faith, it does not require subjective judgment, it simply follows established legal precept and precedent.   There are many other ways in which English contract law will influence the terms of a contract to prevent unfairness, such as implying terms in law and in fact in cases where it is necessary, or where it goes without saying, or where it would follow the way contracts of a particular kind should be in order to be consistent with social fairness; nevertheless, the implication of terms in contracts is highly intrusive and it is thus subject to clear rules and precedent when applied by the courts,[122] as stated by Lord Bingham in Phillips Electronique Grand Public SA v B Sky B Ltd.[123]   Therefore, there is an inherent conflict between the autonomy of the parties to perform a contract into which they have freely entered, and the imposition of good faith during contract performance; this is so particularly because the concept of good faith and fair dealing is impossible to define and it means different things to different people, at different time and in different places; it cannot therefore be a consistent legal principle or subject to a universal definition; it does not apply equally to a consumer and a fiduciary.[124]   According to legal authorities in civil law systems there are three main functions linked to good faith: first, interpretation of a contract; second, supplementation; this means that good faith should be inserted into a contract to create a duty to be loyal, to co-operate, and to inform, and third, as correction or limitation to prevent abuse of rights.[125] However, as analysed above, English contract law has more efficient, established and developed ways to achieve those aims. This also shows as stated by Professor Bridge that there is a profound difference between the common law and civil law in the way legal rules are conceived and the way in which the two legal traditions draw the line between questions of law and questions of fact.[126] Although English law does not have the same inclination as civil law systems for an express recognition of the concept of good faith, it is able by virtue of more detailed rules to achieve the same results[127] whilst avoiding the pitfalls. From this perspective, it is submitted that the courts’ approach to good faith obligations in English contract law is coherent and justified.   2.5 Good faith as an express obligation Some contracts contain an express obligation to act in good faith and such express term must be interpreted by the courts.  The first enquiry the courts would make is whether the good faith clause is valid; the language used to impose an express obligation to act in good faith can vary according to existing case law. For instance, in CPC Group Ltd v Qatari Diar Real Estate Investment Company[128] the obligation was to act in “utmost good faith”. The good faith obligation can also be expressed as an obligation to act in “absolute faith”, as was the case in Horn v Commercial Acceptances;[129] in Emirates Trading Agency LLC v Prime Mineral Exports Private Ltd[130] it was expressed as an obligation to resolve disputes by friendly discussion before embarking on an expensive arbitration process.[131]   Regardless of the way in which the express term of good faith is used in the contract, the courts appear unaffected by the way the obligation is stated, Cumbley and Church argue that the courts do not recognise degrees of good faith.[132] Nevertheless, exceptions can be found in construction contracts,[133] where the terms “reasonable endeavours”, “best endeavours” and “all reasonable endeavours” are commonly found; it was stated by the High Court in Rhodia International Holdings v Huntsman International[134] that an obligation of “reasonable endeavours” was less onerous than one of “best endeavours”.[135] Furthermore, in CPC Group Ltd, a case that concerned the development of the Chelsea Barracks by a Qatari group, Justice Vos clarified that an obligation to use “all reasonable endeavours” did not mean the same thing as an obligation to use “best endeavours” or necessarily require a party to sacrifice its commercial interests.[136]   However, in general, a clause requiring the parties to negotiate or settle disputes in good faith is unenforceable under English law due to lack of certainty.[137] The clause in question in Emirates was a time-limited clause requiring the parties to enter into a friendly discussion before starting arbitration became enforceable under the contract.[138] When a dispute arose, Emirates brought an application under s 67 of the Arbitration Act 1996 arguing that the clause was a condition precedent that had to be satisfied before the parties could go to arbitration; the parties had held several meetings but failed to resolve the issues; the ruling of the court was that although the clause was unenforceable, the condition precedent had been satisfied.[139]   Arguably in this case, the clause did not represent an agreement to agree which is unenforceable according to the dictum in Walford; it was instead a time-limited obligation with an identifiable standard: fair, honest and genuine discussions aimed at resolving the dispute, thus, it had sufficient certainty to be enforceable.[140] However, the approach of the court was that in the context of an obligation to attempt to resolve a dispute before referring it to arbitration, the test was whether the provision provided without the need for further agreement: (i) sufficient certainty and unequivocal commitment to commence a process; (ii) it was clear in the provision what steps were required for the parties to take to start the process; (iii) There was sufficient  definition for the court to make an objective determination of the minimum participatory requirements for each party; and (d) an indication of how the process would be exhausted or properly terminable without breach.[141] Although the clause appeared to comply with all the requirements, the court at first instance found it unenforceable;  the decision of the court is rather baffling, except that it could be argued that the court simply followed Walford and rejected the good faith clause.   Additionally, it could be argued that the choice of an express clause of good faith in the contract reflects freedom of contracts between the parties and unless the term is vitiated in some way, say by mistake, fraud, or by being an unfair contract term, it should be upheld; it is submitted that one of the problem with the acceptance of good faith clauses by the English courts is that good faith plays the role of protector in commercial contracts,[142] and this position is already filled in English law by well-established precedent, legal principles and the law of equity; not only are the English courts bound by precedent under the common law, but as discussed in this dissertation, there is no justification for the courts to uphold unclear and subjective concepts such as good faith, where they have well-established legal tools to resolve the issues, and as argued in this dissertation, their approach to good faith obligations is therefore coherent and justified.   The decision was a first instance one, and it remains to be seen if it is upheld by higher courts; however, it is argued that courts following a general approach to construction will give good faith its meaning according to the intention of the parties as construed objectively from the wording used by the contract, the context of the contract as a whole (including its overall purpose where relevant), and the matrix of fact in which it was concluded.[143] Furthermore, there are limits as to the flexibility in which good faith can be worded in an express contract term; in Fujitsu Services Ltd v IBM United Kingdom Ltd[144] the high Court held that an obligation to “have regard” to a variety of partnership principles such as “being open, clear and reliable” was not sufficient to impose a duty of good faith and it did not bring certainty to the contract.[145]   It is submitted that part of the problem is the lack of universal definition of good faith, and this can be seen in the comments made by the courts in various cases, where they have stated that the duty is to adhere to the spirit of the contract; to observe reasonable standards of fair dealing; to be faithful to the stated common purpose, and to act consistently in accordance with the justified expectations of the other party, as seen CPC Group Ltd. Although it is becoming more common to include an express good faith clause in commercial contracts, it is unlikely to be considered a clause that can cut through other express contractual provisions, and it is not capable of undermining the overall commercial deal.[146] Due to the lack of universal definition of good faith any such clause is highly coloured by the commercial context of a contract; in fact, in some cases the clause could have a detrimental effect not anticipated by the parties as was the case in Horn v Commercial Acceptances[147] in respect of a good faith clause requiring disclosure of materials, which is an obligation not recommended or expected by commercial lawyers.[148]   In Horn, a loan agreement between the claimant and the defendant sought a property development facility in two tiers: the first tier from the defendant and top-up finance from the defendant; the agreement expressly provided that “each party shall act in absolute good faith towards the other”.[149] The case was resolved by the court through an analysis and interpretation of the loan agreement, an circumvented the issue of good faith; on the analysis the claimant succeeded based on the loan agreement, but obiter, Smith J stated that had the Court resolved the issue based on the good faith clause, he would have ruled that the express contractual duty of good faith required the defendant to disclose all material facts to the claimant.[150] Although by being obiter it is not a binding comment, it shows the potential pitfalls of good faith clauses in English courts.     Chapter 3 – Further analysis A constant problem regarding the interpretation of good faith clauses by the courts in England is that the concept was imposed by EU law, where most countries have civil law systems as discussed above. There is a recognition of freedom of contract under EU law, which has been acknowledged as “a general principle of civil law” by the European Court of Justice in several cases; for instance in Spain v European Commission,[151] it was used by the Court in respect of the common agricultural policy (CAP).[152] Additionally, freedom of contract has also been seen by the Court as being protected by article 16 of the EU Charter of Fundamental Rights (freedom to conduct business).[153] However, Whittaker correctly argues that substantive EU law provisions qualify the application of freedom of contract in the interest of protecting weaker parties such as consumers, or by prohibiting an abuse of freedom of contract in commercial agreements.[154] Take for instance Directive 2000/35/EC of the European Parliament and of the Council of 29 June 2000, which was enacted to combat late payments in commercial transactions; under recital 19 it is stated that  “This Directive should prohibit abuse of freedom of contract to the disadvantage of the creditor”. The Directive applies to 'commercial transactions', defined as 'transactions between undertakings or between undertakings and public authorities which lead to the delivery of goods or the provision of services for remuneration': articles 1 and 2(1). It is submitted that this is something that is difficult to police and to enforce, and it may mean that its interpretation is left to the European Court of Justice. However, it also shows that there is an inherent conflict in the EU’s view of freedom of contract and a dual view under which freedom of contract may be applicable in some cases such as commercial cases, but not in others, particularly if the case involves consumers, tenants and employees;[155] even in commercial cases freedom of contract can be strictly controlled by good faith clauses.   It is not surprising that the English courts have rejected the concept of good faith, because in contrast, English law offers protection in respect of unfair terms, but it also takes the general position that in commercial contracts, once terms are agreed they are valid, even if they are contained in the standard business form of the other party to the contract; this is qualified to a limited extent by the courts in respect of exemption clauses and penalty clauses in contracts.[156] This is viewed as freedom of contract.   Contrastingly, the modern approach of German law to the control of standard contract terms in all type of contracts (consumer and commercial) is justified by the argument that there is a partial failure in the market that may be legitimate corrected by judicial intervention.[157] Although the influence of EU law on consumer contracts in England and Wales is positive, the same cannot be argued in respect of commercial contracts. To an extent, consumer law can tolerate good faith clauses: see for instance s 62(4) of the Consumer Rights Act 2015 which states that a term is unfair if “contrary to the requirement of good faith” it causes “significant imbalance to the parties”.[158] This provision allows the courts to make an overall evaluation of the different interests involved, instead of being limited to a mere examination of the imbalance of power between the trader and the consumer.[159] However, the 2015 Act specifically excludes the review of terms defining the main subject matter of the contract and it also excludes the appropriateness of the price paid under the contract comparatively with what is supplied; what matters is that the term is (i) prominent, and (ii) transparent.[160] This follows the approach under English law that the courts can review the unfairness of terms in a contract but not the fairness of the bargain struck by the parties. Contrastingly, as stated above, good faith clauses attempt to protect the parties in a commercial contract, which under English law are subject to freedom of contracts. From that perspective, the approach of the courts to good faith obligations in English contract law is undoubtedly coherent and justified.   Conclusion The above analysis has demonstrated that the courts’ approach to good faith obligations in English contract law is coherent and justified. The view of the English courts is the essential principle to respect freedom of contract and the autonomy of the parties to a contract to strike any bargain they want. In the case of MSC Mediterranean Shipping Co SA it was correctly stated that the concept of good faith should not be invoked to either undermine or support the terms of a contract; furthermore, contract law does not exist to correct bad bargains. The analysis in this dissertation has shown that the parties’ rights under a contract in English law are protected by many well-established doctrines and by equity; therefore, it is unnecessary for English contract law to rely on good faith. Clearly, it has become more common for English courts to have to make decisions regarding express good faith clauses, and their different wording such as “best endeavours” or “reasonable endeavours”, which are too uncertain to enforce. However, freedom of contract also encompasses the parties agreeing to include good faith clauses in contracts, and such clauses have been considered enforceable in other common law jurisdictions such as the US; they are also enforceable under international commercial law such as Unidroit contracts. Nevertheless, it is submitted that whether or not there are good faith clauses in a contract, and whether they are implied or express, there is sufficient precedent that is strictly applied, concrete categories and precise rules under English law to provide fairness for the parties to a contract without the necessity to resort to good faith.                                             BIBLIOGRAPHY   Secondary Sources   Books   Beale H, Chitty on Contracts (34th edn, Sweet & Maxwell, 2021)   Beatson J, Burrows A, Cartwright J, Anson’s Law of Contract (31st edn, OUP, 2020)   Beatson J, Friedmann D (eds.) Good Faith and Fault in Contract Law (Oxford University Press, 1995)   Berlin I, Four Essays on Liberty (OUP, 1969)   Chen-Wishart M, Contract Law (6th edn, OUP, 2018)   Dessens A, Essai sur La Notion D’Équité (Imprimerie F Bisseau,1934)   Finch E, Fafinski S, Contract Law (5th edn, Pearson, 2017)   Fox D, Munday R, Soyer B, Tettenborn A, Turner P, Sealy and Hooley’s Commercial Law: Text, Cases and Materials (6th edn, OUP, 2020)   Harris D, Tallon D (eds) Contract Law Today: Anglo-French Comparisons (Clarendon Press, 1991)   Klass G, Letsas G, Saprai P, Philosophical Foundations of Contract Law (OUP, 2014)   Merkin R, Saintier S, Poole’s Textbook on Contract Law (15th edn, OUP, 2021)   Poole J, Casebook on Contract Law (13th edn, OUP, 2016)   Swadling W, Jones G (eds) The Search for Principles: Essays in Honour of Lord Goff (OUP, 1999)   Tettenborn A, Andrews N, Virgo G, Contractual Duties: Performance, Breach, Termination and Remedies (3rd edn, Sweet & Maxwell, 2020)   Zimmermann R, Whittaker S (eds), Good Faith in European Contract Law (Cambridge University Press, 2000)   Journals   Baker J H, 'The law merchant as a source of English law', in W Swadling, G Jones (eds) The Search for Principles: Essays in Honour of Lord Goff (OUP, 1999)   Baker & McKenzie LLP, ‘Agreement to engage in discussion: enforceability’ (2014) Practical Law, Resource ID: 3-578-7936 Beale H, ‘legislative control of fairness: the Directive on Unfair Terms in consumer contracts’, in Beatson J, Friedmann D (eds.) Good Faith and Fault in Contract Law (Oxford University Press, 1995)   Berg A, ‘Promises to negotiate in good faith’ (2003) 119, Law Quarterly Review, 357-363   Berlin I, 'Liberty', in Four Essays on Liberty (OUP, 1969)   Bridge M, ‘Does Anglo-Canadian contract law need a doctrine of good faith?’ (1984) 9 Canadian Business Law Journal, 412   Bridge M, ‘Good faith, the common law and the CISG’ (2017) 22(1) Uniform Law Review, 98-115   Clarke M, ‘The common law of contract in 1993: Is there a general doctrine of good faith?’ (1993) 23(3) Hong Kong Law Journal, 18-341   Cooper S, ‘Reinsurance’ (2022) Westlaw UK, Overview   Cumbley R, Church P, ‘Contracts: good faith’ (2022) Practical Law, Resource ID: W-003-1201   Davies J, ‘Why a common law duty of contractual good faith is not required’ (2002) 8(3), Canterbury Law Review, 529-544   Frangeskides M, Dipple R, ‘Relational contracts: a question of good faith’ (2019) Practical Law, Resource ID: W-020-1784   Goode R, ‘The concept of good faith in English law’ (1992) Centro di studi e ricerche di diritto comparato e straniero   Harris M, ‘Insurance: the pre-contractual duty of utmost good faith (for policies taken out before 12 August 2016) (2022) Practical Law, Resource ID: 0-568-1347   Hoar C, ‘I tried my best but was it good enough?’ (2010) Construction Newsletter 2-3   Leggatt G, ‘Negotiation in good faith: adapting to changing circumstances in contracts and English contract law - Jill Poole memorial lecture, Aston University: 19 October 2018” (2018) 2, Journal of Business Law, 104-121   Markovits D, ‘Good faith as contract’s core value’, in Gregory Klass, George Letsas, Prince Saprai, Philosophical Foundations of Contract Law (OUP, 2014)   Neill P, ‘A key to lock-out agreements?’ (1992) 108, Law Quarterly Review, 405-413   Nicholas B, ‘Rules and terms – civil law and common law’ (1974) 48, Tulane Law Review 946   Nicholas B, ‘The pre-contractual obligation to disclose information, English report’ in Harris D, Tallon D (eds) Contract Law Today: Anglo-French Comparisons (Clarendon Press, 1991) Piers M, ‘Good faith in English law – could a rule become a principle?’ (2011) 26, Tulane European & Civil Law Forum, 123-162   Practical Law, ‘Duty of good faith’ (2022) Thomson Reuters, Resource ID: 1-107-6164   Practical Law, ‘High Court considers contractual duty of good faith’ (2011) Thomson Reuters, Resource ID: 2-506-9154   Razi G M, ‘Reflections on equity in the civil law systems’ (1963) 13(1) American University Law Review, 24-44   Rhodes R, Maguire A, ‘Have the risks of ADR escalation clauses reduced?’ (2016) 82(1) Arbitration, 16-21   Rosenberg G, ‘The notion of good faith in the civil law of Quebec’ (1960) 7(1) McGill Law Journal, 2-23   Tancelin M, ‘Comment on Michael Bridge’s paper: does Anglo-Canadian law need a doctrine of good faith’ (1984) 9(4) Canadian Business Law Journal, 430-434   Trakman L, Sharma K, ‘The binding force of agreements to negotiate in good faith’ (2014) 73(3) Cambridge Law Journal, 598-628   Whittaker S, ‘The optional instrument of European contract law and freedom of contract’ (2011) 7(3) European Review of Contract Law, 371-398     Online   Dechert LLP, ‘Covid-19 and duties of good faith under English law’ (2020) Available at: https://www.dechert.com/knowledge/onpoint/2020/6/covid-19-and-duties-of-good-faith-under-english-law.html Accessed 30 April 2022   HM Courts & Tribunals Service https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/672422/The_Commercial_Court_Guide_new_10th_Edition_07.09.17.pdf   Mayer Brown, ‘Good faith – is there a new implied duty in English contract law? (2013) Available at: https://www.mayerbrown.com/-/media/files/perspectives-events/publications/2013/07/good-faith--is-there-a-new-implied-duty-in-english/files/good_faith_jul2013_corp-alert/fileattachment/good_faith_jul2013_corp-alert.pdf Accessed 3 May 2022   v/lexJustis, ‘Clean hands in UK law’ (not-dated) Available at: https://vlex.co.uk/tags/clean-hands-4199383 Accessed 30 April 2022   Table of Cases   Bates and others v Post Office Ltd (No.3) [2019] EWHC 606 QB   Berkley Community Village Ltd v Pullen, [2007] EWHC 1330 Ch   CPC Group Ltd v Qatari Diar Real Estate Investment Company [2010] EWHC 1535 Ch   Carter v Boehm (1766) 3 Burr. 1905   Cathay Pacific Airways Limited v Lufthansa Technik AG [2020] EWHC 1789 Ch   Channel Home Centers v Grossman 795 F.2d. 291 (1986)   Courtney and Fairbairn Ltd v Tolaini Brothers (Hotels) Ltd [1975] 1 WLR 297   Director General of Fair Trading v First National Bank [2001] UKHL 52   Emirates Trading Agency LLC v Prime Mineral Exports Private Ltd [2014] EWHC 2104 Comm   Fili Shipping Company Ltd v Premium Nafta Products Ltd; Fiona Trust & Holding   Corporation v Privalov, [2006] EWHC 2583 (Comm)   First Energy (UK) Ltd v Hungarian International Bank Ltd [1993] 2 Lloyd’s Rep 194   Fujitsu Services Ltd v IBM United Kingdom Ltd [2014] EWHC 752 TCC   Globe Motors Inc v TRW Lucas Variety Electric Steering Ltd [2016] EWCA Civ 396   Hillas & Co v Arcos [1932] 43 Ll L Rep 359   Hongkong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd, [1962] 2 QB 26   Horn v Commercial Acceptances; [2011] EWHC 1757 Ch   Ing Bank NV v Ross Roca SA, [2011] EWCA Civ 353   Interfoto Picture Library v Stilletto Visual Programmes Ltd, [1989] QB 433   Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896   Mallozzi v Carapelli SpA [1976] 1 Lloyd’s Rep 407   Market Street Associates Limited Partnership v Frey 941 F.2d 588 (7th Cir. 1991)   Mendelssohn v Normand Ltd [1970] 1 QB 177   MSC Mediterranean Shipping Co SA v Cottonex Anstalt  [2016] EWCA Civ 789   ORB arl v Ruhan. 2016] EWHC 150 (Comm)   Petromec Inc v Petroleo Brasileiro SA Petrobas (No. 3) [2005] EWCA Civ 891 Phillips Electronique Grand Public SA v B Sky B Ltd [1995] EMLR 472   Rhodia International Holdings v Huntsman International [2007] EWHC 292 Comm   Spain v European Commission, Case 240/97 [1999] ECR I-6571   Tinsley v Milligan [1993] UKHL 3   UTB LLC v Sheffield United Ltd. [2019] EWHC 2322 Ch   Union Eagle ltd v Golden Achievement Ltd [1997] AC 514   Walford v Miles [1992] 2AC 128   Yam Seng Pte Ltd v International Trade Corp Ltd [2013] EWHC 111 QB   Table of Legislation   Arbitration Act 1996   Consumer Rights Act 2015   Directive 93/13 on unfair terms in consumer contracts   Insurance Act 2015   Marine Insurance Act 1906   Unfair Terms in Consumer Contracts Regulations 1994                       [1] Robin Merkin, Séverine Saintier, Poole’s Textbook on Contract Law (15th edn, OUP, 2021) 1 [2] Ibid 2 [3] HM Courts & Tribunals Service https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/672422/The_Commercial_Court_Guide_new_10th_Edition_07.09.17.pdf Accessed 1 May 2022 [4] Roy Goode, ‘The concept of good faith in English law’ (1992) Centro di studi e ricerche di diritto comparato e straniero, 2 [5] David Fox, Roderick Munday, Baris Soyer, Andrew Tettenborn, Peter Turner, Sealy and Hooley’s Commercial Law: Text, Cases and Materials (6th edn, OUP, 2020) 13 [6] J H Baker, 'The law merchant as a source of English law', in W Swadling and G Jones (eds) The Search for Principles: Essays in Honour of Lord Goff (OUP, 1999) 103 [7] David Fox, Roderick Munday, Baris Soyer, Andrew Tettenborn, Peter Turner, Sealy and Hooley’s Commercial Law: Text, Cases and Materials (6th edn, OUP, 2020) 13 [8] (1766) 3 Burr. 1905 [9] Ibid (Lord Mansfield) 1910 [10] Ibid [11] Hugh Beale, Chitty on Contracts (34th edn, Sweet & Maxwell, 2021) 2-036 [12] (1871) LR 6 QB 597 [13] Hugh Beale, Chitty on Contracts (34th edn, Sweet & Maxwell, 2021) 5-025 [14] Ibid 2-036 [15] Ibid, 4-169 [16] Miles Harris, ‘Insurance: the pre-contractual duty of utmost good faith (for policies taken out before 12 August 2016) (2022) Practical Law, Resource ID: 0-568-1347; Simon Cooper, ‘Reinsurance’ (2022) Westlaw UK, Overview [17] [1992] 2AC 128 [18] Jill Poole, Casebook on Contract Law (13th edn, OUP, 2016) 68 [19] Ibid 69 [20] [2005] EWCA Civ 891 [21] Jill Poole, Casebook on Contract Law (13th edn, OUP, 2016) 70 [22] Ibid [23] Patrick Neill, ‘A key to lock-out agreements?’ (1992) 108, Law Quarterly Review, 405-413, 407 [24] 795 F.2d. 291 (1986) [25] Patrick Neill, ‘A key to lock-out agreements?’ (1992) 108, Law Quarterly Review, 405-413, 407 [26] Ibid, 405 [27] Ibid, 410 [28] [1932] 43 Ll L Rep 359 [29] Alan Berg, ‘Promises to negotiate in good faith’ (2003) 119, Law Quarterly Review, 357-363, 357 [30] [1975] 1 WLR 297 [31] Alan Berg, ‘Promises to negotiate in good faith’ (2003) 119, Law Quarterly Review, 357-363, 358 [32] [1976] 1 Lloyd’s Rep 407 [33] [2011] EWCA Civ 353 [34] Ibid, 92 [35] Ibid [36] Maud Piers, ‘Good faith in English law – could a rule become a principle?’ (2011) 26, Tulane European & Civil Law Forum, 123-162, 125 [37] Mindy Chen-Wishart, Contract Law (6th edn, OUP, 2018) 576 [38] Ibid [39] [1993] 2 Lloyd’s Rep 194 [40] Mindy Chen-Wishart, Contract Law (6th edn, OUP, 2018) 576 [41] Ibid [42] Maud Piers, ‘Good faith in English law – could a rule become a principle?’ (2011) 26, Tulane European & Civil Law Forum, 123-162, 126 [43] Robin Merkin, Séverine Saintier, Poole’s Textbook on Contract Law (15th edn, OUP, 2021) 265 [44] Hugh Beale, ‘legislative control of fairness: the Directive on Unfair Terms in consumer contracts’, in Jack Beatson, Daniel Friedmann (eds.) Good Faith and Fault in Contract Law (Oxford University Press, 1995) 245 [45] [2001] UKHL 52 [46] Ibid (Lord Bingham) 17 [47] Maud Piers, ‘Good faith in English law – could a rule become a principle?’ (2011) 26, Tulane European & Civil Law Forum, 123-162, 127 [48] Practical Law, ‘Duty of good faith’ (2022) Thomson Reuters, Resource ID: 1-107-6164 [49] Reinhard Zimmermann, Simon Whittaker (eds), Good Faith in European Contract Law (Cambridge University Press, 2000) 13 [50] Mayer Brown, ‘Good faith – is there a new implied duty in English contract law? (2013) Available at: https://www.mayerbrown.com/-/media/files/perspectives-events/publications/2013/07/good-faith--is-there-a-new-implied-duty-in-english/files/good_faith_jul2013_corp-alert/fileattachment/good_faith_jul2013_corp-alert.pdf Accessed 3 May 2022; Reinhard Zimmermann, Simon Whittaker (eds), Good Faith in European Contract Law (Cambridge University Press, 2000) 116 [51] Ibid; Daniel Markovits, ‘Good faith as contract’s core value’, in Gregory Klass, George Letsas, Prince Saprai, Philosophical Foundations of Contract Law (OUP, 2014) 272 et seq [52] Ibid [53] 941 F.2d 588 (7th Cir. 1991) [54] Ibid (Judge Richard Posner) 595 [55] Ibid, 593, 594 [56] Reinhard Zimmermann, Simon Whittaker (eds), Good Faith in European Contract Law (Cambridge University Press, 2000) 15 [57] Barry Nicholas, ‘The pre-contractual obligation to disclose information, English report’ in Donald Harris, Dennis Tallon (eds) Contract Law Today: Anglo-French Comparisons (Clarendon Press, 1991) 187 [58] Roy Goode, ‘The concept of good faith in English law’ (1992) Centro di studi e ricerche di diritto comparato e straniero, 7 [59] G M Razi, ‘Reflections on equity in the civil law systems’ (1963) 13(1) American University Law Review, 24-44, 24 [60] Andre Dessens, Essai sur La Notion D’Équité (Imprimerie F Bisseau,1934) 5-6 [61] Dechert LLP, ‘Covid-19 and duties of good faith under English law’ (2020) Available at: https://www.dechert.com/knowledge/onpoint/2020/6/covid-19-and-duties-of-good-faith-under-english-law.html Accessed 30 April 2022 [62] [2001] UKHL 52 [63] Reinhard Zimmermann, Simon Whittaker (eds), Good Faith in European Contract Law (Cambridge University Press, 2000) 16 [64] Ibid, 19 [65] Sir George Leggatt, ‘Negotiation in good faith: adapting to changing circumstances in contracts and English contract law - Jill Poole memorial lecture, Aston University: 19 October 2018” (2018) 2, Journal of Business Law, 104-121,106 [66] Ibid 107 [67] Emily Finch, Stefan Fafinski, Contract Law (5th edn, Pearson, 2017) 2 [68] Leon Trakman, Kunal Sharma, ‘The binding force of agreements to negotiate in good faith’ (2014) 73(3) Cambridge Law Journal, 598-628,599 [69] Anson 67 [70] Dechert LLP, ‘Covid-19 and duties of good faith under English law’ (2020) Available at: https://www.dechert.com/knowledge/onpoint/2020/6/covid-19-and-duties-of-good-faith-under-english-law.html Accessed 30 April 2022 [71] Hugh Beale, Chitty on Contracts (34th edn, Sweet & Maxwell, 2021) 15-055 [72] [1998] 1 WLR 896 [73] Michael Bridge, ‘Does Anglo-Canadian contract law need a doctrine of good faith?’ (1984) 9 Canadian Business Law Journal, 412 [74] Ibid [75] Maurice Tancelin, ‘Comment on Michael Bridge’s paper: does Anglo-Canadian law need a doctrine of good faith’ (1984) 9(4) Canadian Business Law Journal, 430-434, 431 [76] Malcolm Clarke, ‘The common law of contract in 1993: Is there a general doctrine of good faith?’ (1993) 23(3) Hong Kong Law Journal, 18-341, 319 [77] Michael Bridge, ‘Good faith, the common law and the CISG’ (2017) 22(1) Uniform Law Review, 98-115, 98 [78] [2016] EWHC 150 (Comm) [79] [2006] EWHC 2583 (Comm) [80] v/lexJustis, ‘Clean hands in UK law’ (not-dated) Available at: https://vlex.co.uk/tags/clean-hands-4199383 Accessed 30 April 2022 [81] [1993] UKHL 3 [82] v/lexJustis, ‘Clean hands in UK law’ (not-dated) Available at: https://vlex.co.uk/tags/clean-hands-4199383 Accessed 30 April 2022 [83] [2007] EWHC 1330 Ch [84] Ibid (Morgan J) 1 [85] Ibid, 33 [86] Ibid, 142 [87] Ibid, 79 [88] Andrew Tettenborn, Neil Andrews, Graham Virgo, Contractual Duties: Performance, Breach, Termination and Remedies (3rd edn, Sweet & Maxwell, 2020) 7-022 [89] Jack Beatson, Andrew Burrows, John Cartwright, Anson’s Law of Contract (31st edn, OUP, 2020) 519 [90] [1962] 2 QB 26 [91] Jack Beatson, Andrew Burrows, John Cartwright, Anson’s Law of Contract (31st edn, OUP, 2020) 519 [92] Ibid 589 [93] Mindy Chen-Wishart, Contract Law (6th edn, OUP, 2018) 577 [94] [1989] QB 433 [95] Ibid (Lord Bingham) 439 [96] [2016] EWCA Civ 789 [97] Ibid (Moore-Bick LJ) 45 [98] [1997] AC 514 [99] Hugh Beale, Chitty on Contracts (34th edn, Sweet & Maxwell, 2021) 2-039 [100] Ibid [101] Ibid, 2-083 [102] Mindy Chen-Wishart, Contract Law (6th edn, OUP, 2018) 78 [103] Robin Merkin, Séverine Saintier, Poole’s Textbook on Contract Law (15th edn, OUP, 2021) 263 [104] Mindy Chen-Wishart, Contract Law (6th edn, OUP, 2018) 376 [105] [1970] 1 QB 177 [106] Barry Nicholas, ‘Rules and terms – civil law and common law’ (1974) 48, Tulane Law Review 946, 950 [107] Richard Cumbley, Peter Church, ‘Contracts: good faith’ (2022) Practical Law, Resource ID: W-003-1201 [108] [2013] EWHC 111 QB [109] Ibid, 142 [110] [2020] EWHC 1789 Ch [111] Ibid (Kimbell QC) 187 [112] [2019] EWHC 606 QB [113] Maria Frangeskides, Rebecca Dipple, ‘Relational contracts: a question of good faith’ (2019) Practical Law, Resource ID: W-020-1784 [114] [2016] EWCA Civ 396 [115] Richard Cumbley, Peter Church, ‘Contracts: good faith’ (2022) Practical Law, Resource ID: W-003-1201 [116] [2019] EWHC 2322 Ch [117] Isaiah Berlin, 'Liberty', in Four Essays on Liberty (OUP, 1969) 118 [118] Mindy Chen-Wishart, Contract Law (6th edn, OUP, 2018) 579 [119] Ibid, 208 [120] Ibid, 579 [121] Maud Piers, ‘Good faith in English law – could a rule become a principle?’ (2011) 26, Tulane European & Civil Law Forum, 123-162, 136 [122] Mindy Chen-Wishart, Contract Law (6th edn, OUP, 2018) 402 [123] [1995] EMLR 472 [124] James Davies, ‘Why a common law duty of contractual good faith is not required’ (2002) 8(3), Canterbury Law Review, 529-544, 530 [125] Ibid, 531 [126] Michael Bridge, ‘Good faith, the common law and the CISG’ (2017) 22(1) Uniform Law Review, 98-115, 100 [127] Ibid [128] [2010] EWHC 1535 Ch [129] [2011] EWHC 1757 Ch [130] [2014] EWHC 2104 Comm [131] Richard Cumbley, Peter Church, ‘Contracts: good faith’ (2022) Practical Law, Resource ID: W-003-1201 [132] Ibid [133] [2010] EWHC 1535 Ch, 246 [134] [2007] EWHC 292 Comm [135] Chris Hoar, ‘I tried my best but was it good enough?’ (2010) Construction Newsletter 2-3, 2 [136] Ibid [137] Baker & McKenzie LLP, ‘Agreement to engage in discussion: enforceability’ (2014) Practical Law, Resource ID: 3-578-7936 [138] Ibid [139] Ibid [140] Ibid [141] Robert Rhodes, Andrew Maguire, ‘Have the risks of ADR escalation clauses reduced?’ (2016) 82(1) Arbitration, 16-21, 19 [142] George Rosenberg, ‘The notion of good faith in the civil law of Quebec’ (1960) 7(1) McGill Law Journal, 2-23, 3 [143] Hugh Beale, Chitty on Contracts (34th edn, Sweet & Maxwell, 2021) 2-005 [144] [2014] EWHC 752 TCC [145] Richard Cumbley, Peter Church, ‘Contracts: good faith’ (2022) Practical Law, Resource ID: W-003-1201 [146] Ibid [147] [2011] EWHC 1757 Ch [148] Richard Cumbley, Peter Church, ‘Contracts: good faith’ (2022) Practical Law, Resource ID: W-003-1201 [149] Practical Law, ‘High Court considers contractual duty of good faith’ (2011) Thomson Reuters, Resource ID: 2-506-9154 [150] Ibid [151] Case 240/97 Spain v European Commission [1999] ECR I-6571 [152] Ibid, 99 [153] Simon Whittaker, ‘The optional instrument of European contract law and freedom of contract’ (2011) 7(3) European Review of Contract Law, 371-398, 373 [154] Ibid [155] Ibid [156] Ibid, 375 [157] Reinhard Zimmermann, The New German Law of Obligations, Historical and Comparative Perspectives (OUP, 2005) 176 [158] Hugh Beale, Chitty on Contracts (34th edn, Sweet & Maxwell, 2021) 2-046 [159] Ibid [160] Ibid  

Place your order