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32 Comp. Lab. L. & Pol'y J. 729 (2010-2011)
Good Faith in the Contract of Employment: A Case of the English Reserve

handle is hein.journals/cllpj32 and id is 737 raw text is: GOOD FAITH IN THE CONTRACT OF EMPLOYMENT: A CASE OF THE ENGLISH RESERVE? Alan L. Boggt I. INTRODUCTION: GOOD FAITH AND THE CONTRACT OF EMPLOYMENT It is well known that the English common law was singularly averse to developing a contractual duty of good faith.' The great English commercial lawyer Professor Sir Roy Goode observed that the reluctance of English courts to recognize a general duty of good faith or to interfere with bargains freely made is an aspect of a general mistrust of what are perceived to be over-broad principles.2 Superficially, at least, these reservations seem puzzling. After all, if one is against good faith, is this not the same thing as being in favor of bad faith in contractual dealings? That hardly seems promising as a rational basis for contract law. Is it not like being against courage, kindness, beauty, or some other virtue; andfor cowardice, cruelty, ugliness, or some other vice? This English reserve on the matter of contractual good faith seems rather eccentric. However, when one probes a little deeper, then matters are more complex. While one might disagree with the English reservations, there is no doubt that they reflected genuine concerns about the proper role of law in the regulation of contractual behavior. Some contract scholars were concerned about the dangers of arbitrary judicial decisions and idiosyncratic judgments given the open- texture of good faith.3 Better by far to leave the parties to negotiate their t Hertford College and University of Oxford, Faculty of Law. I would like to express sincere thanks to Matt Finkin and Stacey Ballmes for organizing a wonderful conference on the subject of good faith in Hamburg, July 2010. I am sincerely grateful to all of the participants in that workshop for stimulating and supportive discussion of the topic. I am also very grateful to Lizzie Barmes, Anne Davies, and Tonia Novitz for very helpful comments on an early draft of this article. The usual disclaimers apply. 1. This tendency of the Classical law of contract has been described in Jack Beatson & Daniel Friedmann, From Classical to Modern Contract Law, in GOOD FAITH AND FAULT IN CONTRACT LAW 3, 14-15 (Jack Beatson & Daniel Friedmann eds., 1995). Of course, the aversion was not universally endorsed. For an early academic rejection of the English reservations, see Raphael Powell, Good Faith in Contracts, 9 CURRENT LEGAL PROBS. 16 (1956). 2. EWAN McKENDRICK, GOODE ON COMMERCIAL LAW 105 (4th ed. 2010). 3. M.G. Bridge, Does Anglo-Canadian Contract Law Need a Doctrine of Good Faith?, 9 CAN. B. L.J. 385, 413 (1984). 729

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