Contract Law Lecture 15 Good Faith and Inequality of Bargaining Power Track/slide 1 So far when looking at contract law we have been looking at specific ‘rules’ – of offer and acceptance, consideration, terms and so forth. We have noted some background themes such as laissez-faire and sanctity of contract but we have not acknowledged any wide sweeping ‘general’ doctrines in English contract law. Two possible general doctrines that have caused debate are: A general doctrine to provide relief against the abuse of inequality of bargaining power A general doctrine to incorporate the notion of good faith into contract negotiation, content and performance What we shall see is that : ‘English lawyers tend to be hostile to broad general principles. They are much more comfortable when reasoning incrementally And by analogy with the existing body of case law.’ Whilst a general doctrine to provide relief against the abuse of inequality of bargaining power seems unlikely to become a reality due to Lord Scarman’s hostile words against it in National Westminster bank v Morgan 1985, in contrast it could be argued that at some point in the future English contract law may well have to accept a general doctrine of good faith. Track/slide 2 How the notion of good faith currently influences English contract law Whilst there is no general doctrine of good faith in English contract law at present, nevertheless it influences contract law as follows: Unfair terms in consumer contracts regulations 1999 regulation 5 Unfair contract terms act 1977 s 11 Economic duress Undue influence The rules on incorporation of onerous, unusual or outlandish terms Penalty clauses Misrepresentation/mistake Frustration Insurance contracts uberrimae fidei The implication of terms into contracts Promissory estoppel frustration We will concentrate on economic duress and undue influence starting by consideration of the UTCCR 1999. Track/slide 3 UTCCR 1999 We know that the concept of good faith is integral to these regulations as expressed in regulation five: ‘a contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the party’s rights and obligations arising under the contract, to the detriment of the consumer’. There was some initial panic after the initial regulations were introduced in 1994 thinking that the English courts will not know how to deal with this notion of good faith. However, English judges have not had many problems with the concept because they have acknowledged its European origins and have translated it in the civil law tradition. In the case of Director-General of Fair Trading v First National Bank 2000 Lord Bingham in the House of Lords said that good faith is all about ‘the notion of fair and open dealing’. He noted that notions of good faith do exist in English common law as we have listed above. McKendrick notes that the regulations were important because they forced people to debate the notion of good faith and indeed many commentators have argued that English law ‘should’ recognise a general doctrine of good faith. Track/slide 4 Walford v Miles House of Lords 1992 When considering whether or not English contract law should adopt a general doctrine of good faith the starting point has to be this case as it did not recognise an obligation to ‘negotiate’ the contract in good faith. Lord Ackner said that an obligation to negotiate in good faith was unenforceable because: Such an agreement was too uncertain to be enforced – what is good faith? He felt that a duty to negotiate in good faith was repugnant to the adversarial position of the parties involved in negotiations – he said that each party to the negotiations is entitled to pursue his or her own interest so long as he avoids making misrepresentations McKendrick states: ‘the conclusion that English law does not recognise the validity of the duty to carry on negotiations in good faith makes it very difficult, if not impossible, for a court to recognise the existence of the doctrine of good faith in English contract law.’ Criticisms of the decision in Walford v Miles You should now refer to the McKendrick textbook and make notes on the criticisms of the decision in Walford V. Miles. Track/slide 5 Arguments for and against introduction of the doctrine of good faith in English law, the neutral view and different models McKendrick draws heavily on the work of Roger Brownsword ‘Contract Law: themes for the 21st-century’ to discuss these issues. Arguments against: Please make notes on arguments against the doctrine of good faith from the McKendrick textbook. McKendrick states on page 556: ‘Thus the fact that there are individual rules of English contract law that are consistent with the requirements of the doctrine of good faith cannot necessarily be used to support the proposition that English law should recognise a general doctrine of good faith. Provided that the individual rules work, why abandon them in favour of a broad, general principle?’ Arguments for: Likewise, please make notes on the arguments for a doctrine of good faith from the McKendrick textbook. Different models of good faith: McKendrick seems to think that the pressures on England from these other jurisdictions and the European and international principles will mean that sooner or later English contract law will come to accept the existence of the doctrine of the day despite Walford v Miles. Recent Judicial Attitudes towards the doctrine of good faith A more receptive attitude towards the introduction of a general doctrine of good faith can be seen in the case of Petromec Inc v Petroleo Brasileiro SA Petroas 2005. Longmore LJ’s remarks in the Court of Appeal are only obiter dicta but nevertheless are significant. His Lordship notes that where there is an express obligation to negotiate in good faith there is a stronger argument to enforce it [remember that in Walford v Miles there was no express obligation – counsel argued for an implied obligation of good faith] in order to honour the reasonable expectations of honest men. His Lordship criticises the Walford decision and it is likely that if the House of Lords has to re-examine Walford then it would not escape totally unscathed.