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Philosophical Foundations of Contract Law$
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Gregory Klass, George Letsas, and Prince Saprai

Print publication date: 2014

Print ISBN-13: 9780198713012

Published to Oxford Scholarship Online: March 2015

DOI: 10.1093/acprof:oso/9780198713012.001.0001

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Good Faith as Contract’s Core Value

Good Faith as Contract’s Core Value

Chapter:
(p.272) 14 Good Faith as Contract’s Core Value
Source:
Philosophical Foundations of Contract Law
Author(s):

Daniel Markovits

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780198713012.003.0014

The duty of good faith is not a separate undertaking of the parties, but an approach towards the duties they have undertaken. It is an attitude of respect for the contract relation. To display good faith performance is to recognize the authority of the contract and of one’s counterparty to insist on performance of its terms. The contractual duty of good faith is thus a private analog of the public duty to obey that attaches (defeasibly) to every law. Similarly, the duty of good faith in performance is not a duty to coordinate optimally, but attaches only to the agreed-upon contract. Although dominant (economic) theories cast good faith as perfecting contracts, the better view makes good faith a more pedestrian ideal. Good faith also takes the measure of contractual solidarity. It allows contracting parties to remain as self-interested and as free as they were before, except that they must accept that the best interpretation of what they agreed to binds them to limit their self-interest. Such contractual solidarity is not lesser than but rather different from more intimate, natural-law-like fiduciary forms of solidarity.

Keywords:   good faith, freedom of contract, commercial law, private law, legal theory, efficient breach, contractual solidarity

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