An Examination of the Common Law Obligation of Good Faith in the Performance and Enforcement of Commercial Contracts in Australia

摘要

This examination of the common law obligation of good faith in the performance and enforcement of commercial contracts in Australia seeks to achieve a number of objectives.ududududFirst, to chart the historical development of the implied good faith obligation.ududududSecondly, to identify a number of issues that remain unresolved at Australian lower court level.ududududThirdly, to consider five doctrinal approaches that could be adopted by the High Court when ultimately confronted by the competing claims and tensions that have proven divisive in the courts below.ududududFourthly, to assess each approach against three identified benchmarks.ududududThe essential thesis is that good faith should be implied, as a matter of law, in commercial contracts that are relational in nature with an additional call being made for the High Court to explicitly recognise that the underlying basis of the implied good faith obligation is the reasonable expectations of the contractual parties. This approach is the one approach that satisfies all three benchmarks and provides the most satisfactory resolution of the issues that presently bedevil the commercial good faith debate in Australia.