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The principle of good faith in contractual performance: A Scottish-Canadian comparison

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    Rights statement: This article has been accepted for publication by Edinburgh University Press in the Edinburgh Law Review, and can be accessed athttps://www.euppublishing.com/doi/full/10.3366/elr.2019.0571. 

    Accepted author manuscript, 397 KB, PDF-document

Original languageEnglish
Article number1
Pages (from-to)301-331
Number of pages30
JournalEdinburgh Law Review
Volume23
Issue number3
DOIs
Publication statusPublished - 1 Sep 2019

Abstract

In 2014 the Supreme Court of Canada in Bhasin v Hrynew formally but cautiously acknowledged good faith as a general organising principle of contractual performance at common law and that the principle largely manifests by way of implied terms and through the new duty of honesty. Rejecting English recalcitrance on the subject, the SCC concluded that recognising a good faith principle makes the common law less unsettled and piecemeal, more coherent and just. The article suggests that the limitations placed on the good faith principle by the SCC make its potential adoption in Scotland offer more opportunity than risk, especially in relation to the exercise of contractual discretions and contractual remedies.

    Research areas

  • contract, contract performance, good faith

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