Martin A. Hogg
85 Geo. Wash. L. Rev. 1660
U.S. contract law has a rich heritage of good faith jurisprudence. By contrast, the good faith jurisprudence of the United Kingdom is relatively underdeveloped. This Essay undertakes to examine the role of good faith in the implication of terms-in-fact in British contract law. The analysis extends to both English and Scottish cases, with some comparative reference to U.S. law. The Essay begins by exploring the values and standards that good faith connotes. A distinction is then drawn between two uses of good faith: procedural good faith (that is, using good faith to decide whether to imply terms) and substantive good faith (implying terms whose content requires adherence to a good faith standard). British courts have not been receptive to procedural good faith, but there is a growing body of cases in which substantive good faith has been implied by courts, especially with respect to relational contracts. In adjudicating whether to imply terms of a good faith nature, courts have sought to take account of the intention of the parties and have taken a highly contextual approach.
