Campbell on Goof Faith

Question 1

Legattee in Yem Seng on relational contracts

Answer 1

‘distribution agreement’. Unlikely to be enough for a GF duty to arise if it is a ‘simple exchange’, because it does not require predictable performance and trust in the same was as long term.

Question 2

Baird Textile Holdings

Answer 2

English law would not be justified in recognising relational contracts as a formal categort

BUT WHY? Campbell thinks we should.

Question 3

McKendrick on GF

Answer 3

GF is inconsistent with self-interest which parties must be free to pursue (Walford v Miles)

Question 4

Relational Theory of Contract- Manciel

Answer 4

A relational theory of contract allows self-interest to be legitimately pursued in a much more clear way than traditional theories, because it has the duties of honesty, unconscionability etc at its heart., so parties know what they should expect and how the other side will go about it.

Question 5

Criticism of Manciel

Answer 5

Opposed to freedom of contract and competition

Question 6

Restating Manciel in a way which allows for competition

Answer 6

Manciel’s mistake was that he used ‘relational to refer to both contracts which are relational as opposed to simple contracts, and also the relational element of all contracts (the fact contracts are formed of the agreement of the parties)

Better to describe the types of contracts at issue in GF as ‘complex’- which would allow the intrinsic morality of the objective conception of intention which would come from GF in all complex commercial contracts

Question 7

Legatte- on hostility to GF being misplaced

Answer 7

Many duties which are already in English law are those of good faith- honesty etc, the traditional English hostility to a general duty is misplaced.

There is no difficulty in finding a duty of good faith, along the standard method of implication of terms.

Question 8

Campbell- English law has a doctrine of good faith

Answer 8

GF is essential to the concept of a voluntarily agreed bargain.

BUT it is not a general doctrine. For this reason there is no clear understanding of what it actually is.

Our understanding of agreement is dominated by inadequate conceptions of self-interest

Question 9

Campbell- how to have one

Answer 9

English law thus does not have to decide whether to have a doc of good faith. it has to decide how to have one.

Question 10

Powell

Answer 10

adoption of a general doctrine of GF would allow courts to give their sense of the justice of the case without having to resort to contortions.

Question 11

Legatte on why general duty not necessary to avoid contortions

Answer 11

Because the content of a duty of good faith is heavily dependent on construction, context and a case by case approach. There is no need to adopt civil law methods. CL is sufficient.

Question 12

Good faith v certainty

Answer 12

Legatte- because there is nothing vague or unworkable about the concept’s application it involves no more uncertainty than in normal contractual interpretation- because he sees GF as part of the parties OBJECTIVE intentions.

Question 13

Campbell

Answer 13

Better to keep GF as a contextual doctrine dealt with through specific duties rather than a general duty. This will give effect to the parties intentions much better.

Question 14

Legatte’s views are based in ICS v WB

Answer 14

BUT ICS probably goes too far with its purposive approach.