Implied Terms: the Foundation in Good Faith and Fair Dealing LSE Research Online URL for This Paper: Version: Accepted Version
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This Paper Has Been Published in the Journal of Business Law and The
Supreme Court of Singapore, 1 Supreme Court Lane, Singapore 178879, t: (65)-6332-1020 _________________________________________________________________________________________________ This paper has been published in the Journal of Business Law and the Supreme Court Library Queensland gratefully acknowledges the permission of the editor, Professor Robert Merkin, to reprint it in the Yearbook. A version of this essay was delivered at the Current Legal Issues Seminar in the Banco Court on 12 September 2013. I would like to express my deepest appreciation to Ms Andrea Gan and Mr Jonathan Yap, Justices’ Law Clerks, Supreme Court of Singapore, as well as to Asst Prof Goh Yihan of the Faculty of Law, National University of Singapore, for their helpful comments and suggestions. I would also like to dedicate this essay to all the participants who displayed an extraordinary (and, I might add, rare) degree of enthusiasm and (above all) friendship. All errors remain mine alone. Further, all views expressed in this essay are personal views only and do not reflect the views of the Supreme Court of Singapore. Andrew Phang Our Vision: Excellence in judicial education and research. Our Mission: To provide and inspire continuing judicial learning and research to enhance the competency and professionalism of judges. The Challenge of Principled Gap-Filling — A Study of Implied Terms in a Comparative Context by The Honourable Justice Andrew Phang Boon Leong* There has been a veritable wealth of literature on implied terms — ranging from doctoral theses1 to book chapters,2 articles3 and (more recently) a book.4 What accounts for this interest? Perhaps the simplest explanation is that it is an extremely important topic with at least two important functions — one substantive, the other theoretical. -
(A) Forte Prelims
GOOD FAITH IN CONTRACT AND PROPERTY GOOD FAITH IN CONTRACT AND PROPERTY Edited by A. D. M. Forte OXFORD – PORTLAND OREGON 1999 Hart Publishing Oxford and Portland, Oregon Published in North America (US and Canada) by Hart Publishing c/o International Specialized Book Services 5804 NE Hassalo Street Portland, Oregon 97213-3644 USA Distributed in the Netherlands, Belgium and Luxembourg by Intersentia, Churchillaan 108 B2900 Schoten Antwerpen Belgium Distributed in Australia and New Zealand by Federation Press John St Leichhardt NSW 2000 © The contributors severally 1999 The contributors have asserted their right under the Copyright, Designs and Patents Act 1988, to be identified as the authors of this work Hart Publishing Ltd is a specialist legal publisher based in Oxford, England. To order further copies of this book or to request a list of other publications please write to: Hart Publishing Ltd, Salter’s Boatyard, Oxford OX1 4LB Telephone: +44 (0)1865 245533 or Fax: +44 (0)1865 794882 e-mail: [email protected] British Library Cataloguing in Publication Data Data Available ISBN 1 84113–047–8 Typeset by Hope Services (Abingdon) Ltd. Printed in Great Britain on acid-free paper by Biddles Ltd, Guildford and Kings Lynn. CONTENTS Table of Cases xi Table of Legislation and Delegated Legislation xix Table of International Conventions and Principles xxiii Preface The Right Honourable the Lord Rodger of Earlsferry, Lord President xiv 1. Introduction 1 A.D.M. Forte 2. Good Faith in the Scots Law of Contract: An Undisclosed Principle? 5 Hector L. MacQueen 3. Good Faith: A Matter of Principle? 39 Ewan McKendrick 4. -
The Negotiation Stage
Part I The negotiation stage M02_HALS8786_02_SE_C02.indd 17 7/19/12 3:47 PM M02_HALS8786_02_SE_C02.indd 18 7/19/12 3:47 PM 2 Negotiating the contract Introduction Lord Atkin once remarked that: ‘Businessmen habitually . trust to luck or the good faith of the other party . .’.1 This comment2 provides more than an insight into the motivations of businessmen. It also implicitly acknowledges a limitation of the common law in policing the activities of contractors: the law no more ensures the good faith of your contractual partner than it guarantees your good fortune in business dealings. However, this might not be an accurate description of the purpose of the law relating to pre-contractual negotiations. In an important judgment that was notable for its attempt to place the legal principles under discussion in a broader doctrinal and comparative context Bingham LJ in the Court of Appeal observed that:3 In many civil law systems, and perhaps in most legal systems outside the common law world, the law of obligations recognises and enforces an overriding principle that in making and carrying out contracts parties should act in good faith . It is in essence a principle of fair and open dealing . English law has, characteristically, committed itself to no such overriding principle but has developed piecemeal solutions to demonstrated problems of unfairness. This judgment makes it clear that the gap between civil and common-law jurisdictions is exaggerated by observations at too high a level of generality. While it is true to say that the common law does not explicitly adopt a principle of good faith, it is as obviously untrue to say that the common law encourages bad faith. -
Xxxi BIBLIOGRAPHY a Alton WG Malpractise
BIBLIOGRAPHY A Alton W.G. Malpractise (1977) American College Legal Dynamics of Medical Encounters Legal Medicine (1991) Amundsen D.W. "The Liability of the Physician in Roman Law" International Symposium on Society, Medicine And Law (edited by Karplus) (1973) 17 Aronstam P. Freedom of Contract, Consumer Protection and the Law (1979) Aronstam P. "Unconscionable Contracts the South African Solution?" 1979 42 THRHR 18 Arterburn N.F. "The Origin and First Test of Public Callings" University Of Pennsylvania Law Review Vol. 75 (1927) 4111 Atiyah P.S. An Introduction to the Law of Contract 2d ed. (1995) Atiyah P.S. The Rise and fall of Freedom of Contract (1979) B Beale K. "Unfair Contract terms Act 1977" British Journal of Law And Society Vol. 5 No 1 (1978) 114 at 115 Beatson J. Anson's Law of Contract (2002) Beatson J. and Friedman D. Good Faith and Fault in Contractual Law (1995) Benatar S.R. "The changing doctor-patient relationship and the new medical ethics" SA Journal of Continuing Medical Education Vol. 5 April (1987) Berkhouwer C. and Vorstman L.D. De Aansprakelijkheid van de Medicus voor Beroepsfouten door Hem en Zijn Helpers Gemaakt (1950) Bertolet M.M. and Goldsmith L.S. Hospital Liability Law and Practice (1987) Beauchamp T.L. and Childress J.F. Principles of Biomedical Ethics (1994) Bhana N. and Pieterse J.M. "Towards a reconciliation of contract law and Constitutional values: Brisley and Afrox Revised 2005 123 SALJ 865 Bianco E.A. and Hirsh H.L. "Consent to and refusal of medical treatment" Published in American College of Legal Medicine - Legal Medicine (1991) Bisbin S.B. -
Misrepresentation
5 – MISREPRESENTATION Contract law does not have specific principle requiring disclosure, but there are certain cases where it is needed. Where there is misrepresentation, non-disclosure or mistake, the possible responses are: 1. The contract is void ab initio 2. The contract is voidable via rescission 3. The contract can be rectified to correct the mistake (see previous supervisions) 4. Damages can be awarded to remedy the wrong Where the issue is a statement made in course of negotiations, the remedy will depend on classification of the statement: 1. Contractual term (a ‘warranty’) – damages for breach of contract, possibly termination for breach (depending on nature of term) 2. Misrepresentation – rescission (subject to bars), and potential tort or Misrepresentation Act 1967 damages At one point, misrepresentation could be ground for rescission and damages were available only under the tort of deceit if there was fraud; no damages for innocent misrep. In Hedley Byrne v Heller (1964), HOL made clear breach of the DOC to avoid negligent misstatement could give rise to damages. 1967 Misrepresentation Act extended damages under s 2(1) to the case of misrepresentation inducing a contract where the representor cannot prove absence of negligence or bad faith. This made inference of collateral contract less necessary, although still necessary because representations as to future are harder to fit in scope of Act. Categorising statements made in negotiations Mere puffs These have no legal effect, they mean nothing - Dimmock v Hallett (1866) -
Final Thesis
University of Huddersfield Repository Alawneh, Tariq A critical analysis of the implied obligation against unjustified deviation: Is the rule still relevant to the modern law on carriage of goods by sea? Original Citation Alawneh, Tariq (2015) A critical analysis of the implied obligation against unjustified deviation: Is the rule still relevant to the modern law on carriage of goods by sea? Doctoral thesis, University of Huddersfield. This version is available at http://eprints.hud.ac.uk/id/eprint/26283/ The University Repository is a digital collection of the research output of the University, available on Open Access. Copyright and Moral Rights for the items on this site are retained by the individual author and/or other copyright owners. Users may access full items free of charge; copies of full text items generally can be reproduced, displayed or performed and given to third parties in any format or medium for personal research or study, educational or not-for-profit purposes without prior permission or charge, provided: • The authors, title and full bibliographic details is credited in any copy; • A hyperlink and/or URL is included for the original metadata page; and • The content is not changed in any way. For more information, including our policy and submission procedure, please contact the Repository Team at: [email protected]. http://eprints.hud.ac.uk/ A critical analysis of the implied obligation against unjustified deviation: Is the rule still relevant to the modern law on carriage of goods by sea? By Tariq Alawneh A Thesis submitted to the University of Huddersfield In partial fulfilment of the requirements for The degree of Doctor of Philosophy Department of Law-Business School University of Huddersfield April 2015 COPYRIGHT STATEMENT i. -
The Basis of Contractual Duties of Good Faith
Paul Davis Printer's Version 2.0 (Do Not Delete) 5/25/2019 12:31 PM THE BASIS OF CONTRACTUAL DUTIES OF GOOD FAITH PAUL S DAVIES* ABSTRACT. This article considers the basis of duties of good faith where not expressly provided for by the parties. It analyses the different approaches adopted in Canada and England and Wales, and assesses whether good faith is part of an ‘irreducible core’ of contract law or whether it should only be introduced into a contract through the mechanism of implied terms. It is suggested that the latter approach is preferable, and that (in the commercial context at least) courts should be wary about imposing duties of good faith on parties who did not provide for such duties. Well-advised commercial parties who wish particular duties to govern their relationship should be encouraged to stipulate such duties expressly in their contract. KEYWORDS: Contract, good faith, implied terms, Bhasin v Hrynew, Yam Seng, interpretation, commercial law. In Bhasin v Hrynew, Cromwell J rightly observed that “[t]he jurisprudence is not always very clear about the source of the good faith obligations found in [contract] cases”.1 Such *Professor of Commercial Law, University College London. I am grateful for the comments of participants at the very stimulating conference on “Good Faith in Contract” held at the Université de Montréal in May 2018 where an earlier version of this article was presented, and especially to Matthew Harrington for the invitation. Even earlier versions of this article were presented at a Chancery Bar Association seminar on “Contractual Discretions” held at the Inner Temple, London, in March 2018, and at a workshop on “Contract Interpretation: A Comparative Discussion” held at the University of Lund, Sweden, in April 2018 (following the very kind 1 Paul Davis Printer's Version 2.0 (Do Not Delete) 5/25/2019 12:31 PM 2 JOURNAL OF COMMONWEALTH LAW [Vol. -
The Duty to Perform Commercial Contracts in Good Faith
Tribunale Bologna 24.07.2007, n.7770 - ISSN 2239-7752 Direttore responsabile: Antonio Zama The duty to perform commercial contracts in good faith: a critical analysis of the recent developments and the impact on loan agreements The Implied Duty to Perform Contracts in Good Faith 19 Settembre 2019 Luca Morrone Indice: 1. The implied duty to perform contracts in good faith 1.1 The implication of the duty in Yam Seng 1.1.1 Is there a general duty of good faith in commercial contracts? 1.1.2 Relational contracts 1.1.3 Contractual discretions 1.2. The content of the duty 1.3 Is the implied duty of good faith necessary? Abstract Il presente articolo “The Implied Duty to Perform Contracts in Good Faith” costituisce la seconda di tre parti dell'elaborato “The Duty to Perform Commercial Contracts in Good Faith: a Critical Analysis of the Recent Developments and the Impact on Loan Agreements”, il quale analizza il dovere di agire secondo buona fede nei rapporti commerciali (il cosiddetto “duty of good faith”) e, in particolare, nei contratti di finanziamento disciplinati dal diritto inglese. Dopo aver svolto un’introduzione a carattere storico-dottrinale sul principio di buona fede, questa parte dell’articolo si prefigge lo scopo di identificare e delineare le connotazioni giuridiche che ha assunto ad oggi il dovere di agire secondo buona fede nelle relazioni contrattuali. Nello specifico, vengono individuati nei cosiddetti “relational contracts” e nelle “contractual discretions” i due principali ambiti di applicazione della buona fede. Mentre i relational contracts costituiscono una tipologia di contratti aventi caratteristiche quali la lunga durata, una molteplicità di obblighi contrattuali, requisiti di collaborazione fra le parti e la necessità di variare i termini contrattuali nel corso della loro durata, le contractual discretions rappresentano un istituto tipicamente anglosassone che permette ad una delle parti contrattuali di valutare discrezionalmente le modalità di esercizio del diritto contrattuale, piuttosto che l'eventualità di esercitarlo. -
The Role of Good Faith in the Performance of Commercial Contracts
Good faith, or a good fake? The role of good faith in the performance of commercial contracts Edward Elvin A dissertation submitted in partial fulfillment of the degree of Bachelor of Laws (with Honours) at the University of Otago October 2015 Acknowledgements Thank you to my supervisor, Jess Palmer. Your patience and support throughout a busy year have been invaluable. Without your encouragement I doubt whether these words would have made it onto the page. Thank you to my awesome family for always being willing to pick up the phone and lend and ear when I needed one. I must give specific mention to my mum, Fiona, and my sister, Rebecca. Your edits and suggestions added polish and direction when I needed it. Finally, thank you to my friends for making law school such a pleasure. Thanks Adam, Emily and Morgan for being rock-solid. 1 CONTENTS CHAPTER 1: INTRODUCTION .................................................................................................. 3 CHAPTER 2: THE CURRENT ROLE OF GOOD FAITH. .................................................. 6 2.1 Recent Common Law Development ................................................................................................. 6 2.2 Good faith in International Sales Law ........................................................................................ 11 2.3 Good faith in civil law ....................................................................................................................... 12 2.4 The role of Good faith in New Zealand: .................................................................................... -
Implied Terms: the Foundation in Good Faith and Fair Dealing LSE Research Online URL for This Paper: Version: Accepted Version
Implied terms: the foundation in good faith and fair dealing LSE Research Online URL for this paper: http://eprints.lse.ac.uk/101641/ Version: Accepted Version Article: Collins, Hugh ORCID: 0000-0002-2142-2208 (2014) Implied terms: the foundation in good faith and fair dealing. Current Legal Problems, 67 (1). 297 - 331. ISSN 0070-1998 https://doi.org/10.1093/clp/cuu002 Reuse Items deposited in LSE Research Online are protected by copyright, with all rights reserved unless indicated otherwise. They may be downloaded and/or printed for private study, or other acts as permitted by national copyright laws. The publisher or other rights holders may allow further reproduction and re-use of the full text version. This is indicated by the licence information on the LSE Research Online record for the item. [email protected] https://eprints.lse.ac.uk/ Implied Terms: the Foundation in Good Faith and Fair Dealing Hugh Collins* Confusion as much as controversy permeates the subject of implied terms in contracts. Controversy always surrounds their purpose and legitimacy, for implied terms lie on the point of friction between the basic disposition of the common law to respect freedom of contract and the regulatory impulse to prevent the worst instances of market exploitation and opportunism. Implied terms permit judicial intervention whilst maintaining the appearance of conformity to the idea of respecting the parties’ self-determination. Confusion now reigns as well, however, for there is no consensus on the legal tests for the introduction of implied terms into contracts, even to the extent of losing them altogether within the nebula of the interpretation of contracts. -
The Basis of Contractual Duties of Good Faith
THE BASIS OF CONTRACTUAL DUTIES OF GOOD FAITH Paul S Davies* In Bhasin v Hrynew, Cromwell J rightly observed that “[t]he jurisprudence is not always very clear about the source of the good faith obligations found in [contract] cases”.1 Such confusion is lamentable. This paper will consider the basis of obligations of good faith in circumstances where there is no express term of the contract which provides for good faith performance of the contract. Twenty years ago, Sir Thomas Bingham described good faith as “[t]he most important contractual issue of our time”.2 In the recent past, some pressure towards recognising a general obligation of good faith has been exerted on the law of England and Wales by drives towards a greater degree of harmonisation within the European Union.3 As a result of the United Kingdom’s decision to leave the EU, such external influences are no longer likely to have much significance. But instead of looking outwards towards civilian jurisdictions, there is now a greater push towards an inwards-facing view of good faith as intrinsic to the very essence of contract and inherent in all contracts. It is notable that debates concerning good faith are of increasing prominence in all major common law jurisdictions.4 * Professor of Commercial Law, University College London. I am grateful for the comments of participants at the very stimulating conference on “Good Faith in Contract” held at the Université de Montréal in May 2018 where an earlier version of this article was presented, and especially to Matthew Harrington for the invitation. -
Contract Law Contract Law
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