Substance or Mere Technique? A Precis on Good Faith Performance in England, France and Germany

Russi, L. (2009). Substance or Mere Technique? A Precis on Good Faith Performance in England, France and Germany. Hanse Law Review, 5(1), pp. 21-30.

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Abstract

This paper attempts to offer a concise discussion of good faith performance and other functionally equivalent doctrines in the laws of England, Germany and France. The study’s goal is that of appraising the consistency of existing differences. More specifically, of whether they relate merely to technique - not being paralleled by diverging final outcomes - or whether the rift is deeper and goes to the very substance of the approach to the solution of similar practical problems. For this purpose, the work first shows the close connection between good faith performance (of contractual obligations) and good faith enforcement (of contractual rights), which – it is contended – are simply different perspectives to bear on substantially identical legal questions. The work then proceeds to examine instances in which either of these perspectives is used to solve disputes, and offers an overview of the most frequent approaches, doctrines and provisions used under the three chosen national laws. At the end of the legal analysis, it is concluded that all three systems recognise similar instances as deserving some degree of legal intervention, performed either under the aegis of good faith or through other legal constructs. It is, however, precisely the difference in the nature and breadth of the legal constructs used across jurisdictions that ends up casting uncertainties as to the precise level of agreement of the three systems: differences in technique may indeed translate in divergent substantial outcomes, albeit only in limited cases.

Item Type: Article
Subjects: K Law > K Law (General)
Divisions: School of Social Sciences > Department of International Politics
Related URLs:
URI: http://openaccess.city.ac.uk/id/eprint/1331

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