Articulating Contractual Good Faith: The Evolving Civil and Common Law Dimension

While the operation of contract law tends to be appreciated through its inherent twofold rationale, informed by autonomy and institutional standards, recurring concerns arise around the ratio of certainty to fairness in contractual transactions. In critically weighing the contract-law commitments to both autonomy- and policy-oriented normative values, a particular regard is given to the recent focus on good faith obligations in common law jurisdictions. Specifically, of notable importance is how considerations of good faith have developed over the last decade in Australia, Canada as well as England and Wales. Yet, the approach to and the degree of acceptance of good faith in commercial contexts in either jurisdiction diverge – ranging from industry-specific statutory regulation articulating good faith and relational contracts, through the recognition of a general organising principle of good faith, to the engagement with implied duties of good faith. In order to capture the potentialities of these developments to influence contract law in terms of enhancing commercial morality, it is necessary to investigate them from a combined civil–common law perspective. On the one hand, the civilian conceptualisations of good faith have arguably impinged upon the way in which the notion evolves in the common law of contract. On the other hand, the departure from the nineteenth-century classical paradigm of the Anglo-American contract law is parallelised with what symptomises the process of decodification in civil law systems. And on this basis, in view of the growing weight of the jurisprudential component of contract law, the common law’s manner of reasoning appears likely to affect continental contract laws under decodification. Within such an intertwined context, critical insights are offered into the role for and the valences of the currently evolving good faith obligations in policing commercial contracts.