A critical study on the remarkable rise of good faith in English commercial contract law

Abstract

Over the past three decades, various instances of the duty of good faith have emerged in English commercial contract law, notably the implied duty of ‘good faith and rationality’ and the implied duty of ‘good faith and fair dealing’. This is a remarkable development considering the traditional hostility of classical English contract law to good faith; this hostility has been particularly prevalent in the context of commercial contracting where, according to classical contract jurisprudence, commercial contracting parties, as rational and self-interested individuals, deal with one another at arm’s length, and good faith would undermine the paramount legal principles of freedom of contract and legal certainty, which they cherish. Yet, this traditional view no longer holds true. This PhD thesis explores, on the one hand, the underlying drivers and influences of these developments, and, on the other, whether the emerging disparate instances of good faith can be rationalised in an overarching legal framework that might provide useful guidance in future novel developments of the duty.
These questions will be addressed using a variety of legal methodologies, combining theoretical, doctrinal and historical study, and a comparison with the developments in other legal fields. More specifically, it compares good faith in commercial contract law jurisprudence with its counterparts in administrative law and employment law, and explores why and how there should be connections with these areas of law that appear to share very little with the business world of commercial contracts. Furthermore, bring a theoretical discussion of political philosophy, legal jurisprudence and contract theory to the topic of good faith, it demonstrates that the good faith development in English law is reflection of underlying influence of the communitarianism and legal welfarism as well as relational contract theory, which have push classical contract law and its underlying theories of libertarianism, utilitarianism and legal formalism to the side.
In short, this PhD study builds on existing jurisprudence on good faith by embedding it in wider theoretical thought in order to rationalise its various manifestations within a general framework of good faith and thus to bring greater conceptual clarity with regard to good faith to its meaning and its boundary of application. Ultimately, this might help to bring about a robust endorsement of good faith equally in commercial relationships. In terms of understanding modern English contract law, the thesis also contributes to the theoretical argument regarding the erosion of classical contract law and its underlying thinking.

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Identifiers

ORCID for Jingzhong Chen: orcid.org/0000-0003-4972-1637

ORCID for Uta Kohl: orcid.org/0000-0002-8616-9469

ORCID for Stephanie Law: orcid.org/0000-0003-2551-7615

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