John Enman-Beech, ‘The Good Faith Challenge’

ABSTRACT
Does contract law respect hard-nosed rational businessmen, or does it enable cut-throats who will lie and cheat whenever they can? Does it promote ethical and socially responsible commercial citizenship, or does it infantilize contractors by protecting them from themselves? All this rhetoric is brought to bear in debates over the place of good faith in contract law. This article wades through some of the rhetoric to clarify the stakes of the good faith challenge. The challenge has been met with three strategies: avoidance (‘there is no principle of good faith’); containment (‘good faith is just respecting the parties’ agreement, nothing to worry about’); and embrace (‘the common law should transform into a good faith regime’). I investigate the three strategies and evaluate their chances for success in Canada – with the odd feint at other Commonwealth jurisdictions. The responses to good faith say more about the common law of contract than does good faith itself.

Enman-Beech, John, The Good Faith Challenge (June 5, 2019). (2019) 1 Journal of Commonwealth Law 35.

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