The Doctrine of Good Faith in Contract Law: A (Nearly) Empty Vessel?

Empty Vessel explores both the positive and normative questions of what the contractually implied obligation of good faith does and should require of contracting parties. The Article attempts to assess and evaluate the ways in which courts are currently employing the good faith doctrine in contract disputes, as part of a larger project whose goal is to re-conceive and reinvigorate the private law doctrine of good faith as one that might assist in effecting the public law norm of equality. Empty Vessel identifies two dominant theoretical approaches to how to define good faith, which I refer to as the fairness (or, Restatement) and the economic (or, foregone-opportunities) approaches. Further, it argues that, to the extent courts have applied and/or referenced the economic and/or fairness models of good faith in their decisions, they have rendered the two approaches operationally and functionally indistinguishable by employing both approaches as analytical proxies for material breach. Empty Vessel is divided into three parts. Part I explains the good faith doctrine, and explores in some depth the theoretical differences between the fairness and economic approaches to good faith. By examining exemplary good faith decisions in the contexts of vanilla commercial contracting, commercial lending, contractor cases, and commercial real estate leasing, Part II argues that contemporary courts employ the good faith doctrine not as a truly implied contractual obligation, but as a rhetorical framework for analyzing underlying issues of what constitutes material breach. In conclusion, Empty Vessel argues that the good faith doctrine might be given new life in two different ways: first, vis-a-vis its applicability to bad faith conduct in contract formation and negotiation (presently the obligation applies only to the performance and termination of contract); and, second, with respect to performance and termination, vis-a-vis it\u27s applicability in the employment context. While the scholarship relating to the former is quite rich, that relating to the latter remains relatively unexplored. As a result, I explore in other articles how good faith might be used in the employment context to remedy presently non-cognizable forms of discrimination

UTMOST GOOD FAITH IN MARINE INSURANCE: A COMPARATIVE STUDY OF ENGLISH AND CHINESE LAW

Publications: Feng Shi, ‘Utmost Good Faith in Marine Insurance: A Comparative Study of English and Chinese Maritime Law’, (2008) 1Plymouth Law Review, University of Plymouth, pp. 154-160, available at http://www.pbs.plymouth.ac.uk/PLR/ Issue%201_conten ts.html, accessed in January 2013. Presentation and Conferences Attended: Feng Shi, ‘Utmost Good Faith in Marine Insurance Law – The Quest for Reform’, 1st International Conference on Marine and Maritime Affairs (ICMMA), April, 2011; Feng Shi, ‘Utmost Good Faith and Disclosure’, Staff Seminar, Plymouth Law School, Plymouth University, UK, 21st May, 2009.As one of the most distinctive characteristics of English insurance law, the duty of utmost good faith is essentially stated in sections 17-20 of the Marine Insurance Act 1906. According to the statutory rules, both of the insurance parties must observe utmost good faith before the conclusion of an insurance contract. After one century of its application, both the judiciary and academics expressed their concerns in terms of its legislative defects and complexity in practice. Some developments have been made in recent judicial decisions and in statutory reform, e.g. the English Consumer Insurance (Disclosure and Representations) Act 2012, and Recommendations, Statutes and Explanations on the Amendments of Chinese Maritime Code of the People’s Republic of China. Therefore, debatable issues and law reform programs in both English and Chinese law are considered in the main body of this thesis. The examination is essentially based upon, (1) the materiality test of the concealed/misrepresented circumstances which can empower the injured party to rescind the insurance abinitio; (2) the duration of utmost good faith and specific issues; (3) the protective measures related to innocent misconduct; (4) the legal status of good faith and its application to fraudulent behaviour; and (5) whether the classic English utmost good faith doctrine can be extended to Chinese law. Therefore, the main objective of this thesis is to provide a comprehensive study of the current status and developments of the duty of utmost good faith in both English and Chinese law, which is of fundamental importance, not only at the negotiation stage, but also throughout the performance and at the claiming stage of an insurance contract. After identifying and analysing these crucial issues, this thesis concludes with some possible solutions

Regulation of Public Sector Collective Bargaining in the States

While the unionization of most private-sector workers is governed by the National Labor Relations Act (NLRA), the legal scope of collective bargaining for state and local public-sector workers is the domain of states and, where states allow it, local authorities. This hodge-podge of state-and-local legal frameworks is complicated enough, but recent efforts in Wisconsin, Michigan, Ohio, and other states have left the legal rights of public-sector workers even less transparent.In this report, we review the legal rights and limitations on public-sector bargaining in the 50 states and the District of Columbia, as of January 2014. Given the legal complexities, we focus on three sets of workers who make up almost half of all unionized public-sector workers: teachers, police, and firefighters, with some observations, where possible, on other state-and-local workers. For each group of workers, we examine whether public-sector workers have the right to bargain collectively; whether that right includes the ability to bargain over wages; and whether public-sector workers have the right to strike

The Business Lawyer as Terrorist Transaction Cost Engineer

Lawyers have garnered a reputation for being unreasonable and excessively contentious. This popular sentiment is embedded in our culture. If lawyers cannot change that perception, a second-best outcome (from the perspective of lawyers) would be the formation of an understanding that there is a reason why they appear to act unreasonably, that it can be desirable for lawyers to act in a way that initially appears to be unreasonable. This Article attempts to build a basis for that understanding in the context of lawyers participating in large commercial transactions

Negotiating a turnkey system: The vendor's viewpoint

My talk today will be from the viewpoint of a business manager responsible for product development, product marketing and product service, while at the same time meeting established goals for profitability. It is not my intention to give a highly technical or legalistic presentation. First, I am not qualified to do so, and second, you are more likely to benefit from understanding the general concepts involved in contracting and leaving the legal details to counsel.published or submitted for publicatio

Above the Law: The Prosecutor\u27s Duty to Seek Justice and the Performance of Substantial Assistance Agreements

We study the gravitational-wave (GW) signatures of clouds of ultralight bosons around black holes (BHs) in binary inspirals. These clouds, which are formed via superradiance instabilities for rapidly rotating BHs, produce distinct effects in the population of BH masses and spins, and, for real fields, a continuous monochromatic GW signal. We show that the presence of a binary companion greatly enriches the dynamical evolution of the system, most remarkably through the existence of resonant transitions between the growing and decaying modes of the cloud (analogous to Rabi oscillations in atomic physics). These resonances have rich phenomenological implications for current and future GW detectors. Notably, the amplitude of the GW signal from the clouds may be reduced, and in many cases terminated, much before the binary merger. The presence of a boson cloud can also be revealed in the GW signal from the binary through the imprint of finite-size effects, such as spin-induced multipole moments and tidal Love numbers. The time dependence of the cloud's energy density during the resonance leads to a sharp feature, or at least attenuation, in the contribution from the finite-size terms to the waveforms. The observation of these effects would constrain the properties of putative ultralight bosons through precision GW data, offering new probes of physics beyond the Standard Model

Acquire a practical overview of 'good faith' in commercial contracting

The twists and turns in the ongoing development of the implied common law good faith obligation in the commercial contractual arena continue to prove fertile academic ground. Despite a lack of guidance from the High Court, the lower courts have been besieged by claims based, in part, on the implied obligation. Although lower court authority is lacking consistency and the ‘decisions in which lower courts have recognised the legitimacy of implication of a term of good faith vary in their suggested rationales’, the implied obligation may provide some comfort to a party to ‘at least some commercial contracts’ faced with a contractual counterpart exhibiting symptoms of bad faith