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Lloyd's Maritime and Commercial Law Quarterly

Book Reviews

GOOD FAITH IN CONTRACT: Concept and Context. Edited by R.Brownsword, Professor of Law, University of Sheffield, N.J.Hird, Lecturer in Law, University of Sheffield, and G.Howells, Reader in Law, University of Sheffield, Askgate, Aldershot (1999) vii and 326 pp. Hardback £45.
The origins of this book lie in a seminar and conference held in Sheffield in 1997. The contributors are drawn from a range of jurisdictions (England, Australia, Finland, Germany, Israel, South Africa and US) and, as a result, there is a considerable amount of useful comparative material to be found in the book. The book consists of 13 essays (an introductory essay written by the editors, followed by the 12 essays contributed by the participants at the conference). The standard of the essays is generally high and the book represents a useful addition to the literature.
The first chapter consists of an introductory essay written by the editors in which they helpfully summarize the essence of the arguments put forward in the remaining essays. As the title of the book suggests, the focus is upon two aspects of good faith, namely the concept of good faith and the contexts in which it operates. As the editors note in their opening chapter, “the more that we are able to clarify the conceptual basis of good faith, and the greater our awareness of the variety of contexts in which a doctrine of good faith might play a regulatory role…the better the prospect of there being a constructive and focused debate about whether it would be appropriate for English law to adopt a general principle of good faith in contracts”.
There are two principal essays on the concept of good faith (Brownsword and Wightman). They helpfully distinguish between different models of good faith (e.g., good faith may be defined in terms of honesty in fact, in contextual terms or as a matter of contractual justice which is imposed on the parties) and they identify different ways of thinking about good faith (negative, neutral and positive). At a high level of abstraction one can distinguish the different models but the more detailed elaboration of the conceptions of good faith in later essays (e.g., Willett and Nehf) reveals the range of views that actually exist in relation to the nature of good faith. A further difficulty lies in translating these models from the realms of theory into the decision-making process in the courts. Here the picture is much fuzzier. This is perhaps best demonstrated by the essay written by Professor Harland, which deals with unconscionability and unfairness from an Australian perspective. The difficulty thrown up by this essay is the obvious one, namely, the nature of the link (if there is one) between good faith on the one hand and unconscionability on the other. Are they the same, similar or (very) different? It is impossible to give a clear answer to this question and it is at this point that doubts about the clarity of the concept of good faith re-emerge.
In terms of the contexts in which good faith can operate, the editors helpfully distinguish between three different contexts, namely the type of legal system (common law or civil law), the type of contract (commercial or consumer) and the nature of the subject matter of the contract (insurance, employment, sale of goods and financial services). The remaining essays examine these different contexts. Thus there are three essays on consumer law (Willett, Nehf and Howells) which are broadly supportive of good faith and one on commodity sales (Bridge) which is hostile to the invocation of good faith in that context. Professor Nehf demonstrates the potential remedial significance of good faith in his discussion of the experiment conducted by American courts into the

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