‘Good faith’ revisited

By Paul Scott

Historically, the English courts have been reluctant to recognise a general doctrine of ‘good faith’ in the performance of contractual obligations, and there is no generally applicable legal definition of the concept.

An obligation to ‘act in good faith’ is an express obligation placed upon all contracting parties in many jurisdictions based on civil codes, and a ‘duty of good faith’ is implied into various categories of contract at English law as appropriate (for example partnership, agency and insurance contracts, and other contracts that involve fiduciary obligations), and a number of standard forms of construction and engineering contract include obligations that might be characterised by some as ‘good faith’-type obligations (for example core clause 10.1 of the NEC3 contract and various forms of ‘partnering’ contract). However, historically, there has been no pervasive concept of ‘good faith’ that applies generally to contracts governed by English law…

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