Question 1

It is clear that English law has adopted overarching principles of 'unconscionability' and 'good faith'.

Accepted Answer

English law has traditionally been reluctant to adopt overarching principles of 'unconscionability' and 'good faith', preferring instead to rely on specific rules and doctrines that address unfairness or bad faith in particular contexts.

Question 2

Which of the following is not a reason for the 'traditional English hostility' towards a doctrine of good faith?&#10;A) No other jurisdiction has adopted such a doctrine.&#10;B) English law tends to develop incrementally and therefore tends to be wary about 'top-down' reasoning.&#10;C) English law embodies an ethos of individualism, and parties are free to pursue their own self-interest.&#10;D) Recognising such a doctrine could create undesirable uncertainty.

Accepted Answer

The assertion that no other jurisdiction has adopted such a doctrine is incorrect. Many legal systems around the world, including those based on civil law, do recognize and incorporate a doctrine of good faith in contractual dealings. This makes choice A incorrect as a reason for traditional English hostility towards the doctrine, as it is factually inaccurate regarding the adoption of good faith principles in other jurisdictions.

Question 3

Parties can create enforceable agreements to negotiate in good faith

Accepted Answer

Parties can agree to negotiate in good faith, and such agreements can be enforceable if they clearly define what constitutes good faith negotiation, making it possible for courts to determine whether the parties have met their obligations.

Question 4

What terms might a court imply into a contract which allows one party to exercise a discretion and make decisions which affect the interests of the other&#10;A) The party will not exercise the discretion arbitrarily.&#10;B) The party will not exercise the discretion irrationally&#10;C) The party will exercise the discretion in good faith.&#10;D) The party will exercise the discretion honestly.

Accepted Answer

Courts often imply terms into contracts to ensure fairness and reasonableness. These terms include not exercising discretion arbitrarily, irrationally, or dishonestly, and acting in good faith, to protect the interests of both parties.

Deck 19: Good Faith