Winds of change in common law jurisdictions : the concept of good faith and fair dealing in the performance of contracts

The paper finds the emergence of the concept of good faith and fair dealing (good faith in an objective sense) in English contract law as a consequence of a dialogue that has been conducted by courts of leading common law jurisdictions over the past several decades. While the prevailing view denies recognition of the general principle of good faith in the law of England and Wales, recent cases acknowledge, in certain circumstances, the possibility of implying it between parties to a contract. This change of heart is plausibly enhanced by a comparative analysis of authorities that originate in such Commonwealth countries as Australia and Canada. The courts in these jurisdictions, in turn, carefully examine those American (United States’) sources, wherein the duty of good faith in the performance of contracts was overtly recognized much earlier.