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| Topic: |
Business
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| Number of pages / Number of words: |
33 / 8981 |
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If the “one size fits all†approach to implication of a duty of good faith is inappropriate, how then (if at all) should the courts approach contracts that are not so negotiated, between parties of unequal standing? Are there other appropriate sources of right or remedy? Or is the concern relevant to the process of implication?
Antecedent and related obligations
As long ago as 1864, Cockburn CJ said in Stirling v Maitland (1864) 5 B&S 840, 852; 122 ER 1043, 1047:
“[I]f a party enters into an arrangement which can only take effect by the continuance of a certain existing state of circumstances, there is an implied engagement on his part that he shall do nothing of his own motion to put an end to that state of circumstances, under which alone the arrangement can be operative...
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However, the contractual duty of co-operation may include a positive element. Where performance of a contract is conditional on some contingency that is (to a greater of lesser extent) within the control of a party, that party must do what is reasonably necessary to enable the condition to be fulfilled, so that the usual remedies for breach of contract – including damages, specific performance and termination – may become available upon breach...
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