About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

38 Del. J. Corp. L. 1 (2013-2014)
Express Contract Terms and the Implied Contractual Covenant of Delaware Law

handle is hein.journals/decor38 and id is 5 raw text is: EXPRESS CONTRACT TERMS AND THE IMPLIED CONTRACTUAL COVENANT OF DELAWARE LAW BY MOHSEN MANESH* ABSTRACT Delaware law conceives of the implied contractual covenant of good faith and fair dealing (the Implied Covenant') in contradictory terms. It is both a gap filler subject to the express terms of a contract and an overriding obligation notwithstanding the express terms of a contract. It is not a judicial license to equitably rewrite bargainedfor agreements, yet courts may invoke the doctrine to limit express contractual rights when fairness dictates. How can these conflicting conceptions coexist? The answer lies in an inescapable reality that is left all but unacknowledged by Delaware law: the express terms of every contract must be judicially construed. By eliding this reality, the law obscures the control that Delaware courts exercise over private agreements. Acknowledging the judicial role in contract construction not only harmonizes the Implied Covenant's conflicting conceptions, but because judicial construction inevitably implicates a court's idiosyncratic notions of equity and reasonableness, it also reveals a degree of indeterminate judicial discretion inherent in the enforcement of express contractual rights and obligations. TABLE OF CONTENTS I. INTRODUCTION ............2............ .....................2 II. THE IMPLIED COVENANT.......................................7 A. Basic Doctrine ........................... .........8 B. Doctrinal Conflicts................................10 .Assistant Professor, University of Oregon School of Law. The Author would like to thank Eric Franklin, Afra Afsharipour, Lawrence Hamermesh, Jim Mooney, Carl Bjerre, Frank Martin, the participants of faculty workshops at the University of California, Davis, School of Law and the Widener University School of Law as well as the practitioners in attendance at a presentation at the Wilmington Club in Wilmington, Delaware for their thoughtful comments on this Article and its contents. The Author is also grateful to Matthew Mertens (J.D. expected 2013), William Brent Hamilton (J.D. expected 2013) and Ryan Kulback (J.D. expected 2014) for their excellent research assistance on this project. This article was made possible in part by the generous support of the University of Oregon School of Law. 1

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most