International Construction Law Review
CROSSING THE CHANNEL IN GOOD FAITH: AN ANGLO-FRENCH COMPARISON FOR CONSTRUCTION DISPUTES
ANNE-SOPHIE GOAPPER1
Partner, Aliénor Avocats
AND
MATHIAS CHEUNG2
Barrister, Atkin Chambers
“Between two girls, which hath the merriest eye;
I have perhaps some shallow spirit of judgement;
But in these nice sharp quillets of the law,
Good faith, I am no wiser than a daw.”
(Henry VI, Part 1: Act II, Scene iv)
INTRODUCTION
For the longest time, the principle of good faith has been seen by English lawyers and English Courts as a largely foreign concept (with a few limited exceptions),3 one that belongs to civil law jurisdictions in Europe and beyond. In one of the most authoritative textbooks on English contract law, it was observed that “in modern discussions of the English position contrasts are often drawn with the use of the concept of good faith in civil law systems, i.e. those whose private law has derived substantially from doctrines and rules of Roman law”.4
The same view appears to be shared on the continent by those who have been trained in the civilian law tradition. In a leading text on European contract law published in 2000, the editors noted that the notion of good faith appears at first sight to be “a rather clear-cut civil law/common law
1 Magistère JAFB, LLM, MACI, French Avocat and Solicitor (England and Wales), Partner at Aliénor Avocats, Paris.
2 LLB (Hons), BCL (Oxon), Barrister at Atkin Chambers, Lincoln’s Inn, London.
3 For instance, a duty of good faith has long been imposed on contracts of partnership: see e.g., O’Neill v Phillips (HL) [1999] 1 WLR 1092, 1098; [1999] 2 All ER 961 (Lord Hoffmann). Similarly, a duty of utmost good faith is imposed on insurance contracts, and this is heavily regulated by statute.
4 Beale, H (ed), Chitty on Contracts (35th Edition, London, 2023), paragraph 2-036.
Pt 3] Crossing the Channel in Good Faith
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