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Summary LAWS10078 Contract Week 9- Good Faith
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LAWS10078 Contract Week 9- Good Faith
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Week 9- Good Faith-European influence has been important in driving the debate for good faith.
1. Definitional question? What does good faith mean?(some people think that the definition is
to broad)
2. Develop and arsenal of points for and against good faith
3. Confirm or deny the initial characterisation of good faith in Scots law.
Definition:
Are we talking about a principle of good faith or a duty in general or specific terms? Approaches to
the definition of good faith:
1. Minimalist- good faith is commercial fairness or reasonable dealing- honesty- often we see in
judgements the duty to behave honestly towards or the converse not to act in bad faith (this
can be used to show if good faith should be promoted or the acting of bad faith should be
penalised)- not acting in an adversarial position- behaving cooperatively and
trustworthiness - in a general way good faith is adhering to commonly known norms and
standards- these words are suggesting aspects of good faith even though they are not
synonymous
2. Expansively- create a comprehensive definition- one way would be to combine all the
minimalist definitions- another way is as per the sheet given in class- the top thing is Hogg’s
attempt to get a maximalist definition- views of his definition:
a. Better to have a longer definition to avoid issues of interpretation- a longer
definition has more opportunity to be more versatile
b. Problem when it is too long is that it can lead to the various judicial interpretation
3. Trying to come up with a single definition would not be clear, instead take four different
manifestations as per Beale (the sheet given in class)- not bring out a single definition until
you have a specific problem before you. What are the problems posed by this?
4. Distinguishing between objective and subjective good faith- the latter focuses on the
knowledge of the parties- it looks about what specific individuals knew e.g. in property law
when you are a bona fide purchaser of goods- looking at an investigation of an individual on
whether he knew a particular fact- the former (what our focus is on) relates to whether you
can hold somebody to be accountable to community norms or standards, from which you
can judge their behaviour. There is a recognition of subjective good faith in Scots law and the
issue is whether the idea of objective good faith exists.
Hector MacQueen says there are 3 functions of good faith:
1. Interpretation- when looking at obligations of a party in a contract d you look at them in
good faith?
2. Supplementation- adding to the law i.e. implied terms, adding in things to contracts other
than by way of implied terms
3. Limitation- limiting or correcting- telling you when you can or cannot use some remedies.
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