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Notions of ‘good faith’ in modern standard forms of construction contract.

In 2017 I successfully completed an LLM in Construction Law. As part of my study, I carried out research into how English courts have responded to notions of good faith in the interpretation of modern forms of construction contracts. Below is the abstract from the dissertation.  If you would like to read all 18000 words of my research, please click here.

 "Modern standard forms of construction contract, characterised by the language of good faith, are now commonplace. Expectations of trust and co-operation underpin the modern forms, embracing the ideals of collaboration and partnering. A general duty to act in good faith, however, is not recognised by English law. This dissertation focuses on the response by English courts to notions of good faith in the performance of modern construction contracts. The study includes a detailed examination of good faith type obligations within modern construction contracts most commonly used in the UK, including the NEC and JCT forms. The research adopts a doctrinal methodology using case law and statute as the primary source of information. The doctrine of good faith, originating from Roman law, is recognised in civil law legal systems and some common law legal systems. A duty to act in good faith exists in English law but its application is limited to contracts for insurance, employment and fiduciary relationships. Alternative doctrine such as estoppel, restitution and misrepresentation has been developed by English law to remedy inequitable outcomes. Where express terms giving effect to a duty of good faith have been used, English courts have been reluctant to allow this to override other express terms. This research argues that a general duty of good faith in English contract law is necessary for the effective use and development of modern standard forms. To assist the English courts, new legislation and more clearly defined terms for good faith in contracts are recommended."

 

Author's note: Since my research in 2017 the body of case law on good faith in contract law has developed. Most notably, for NEC contracts, is the decision by the Inner House Court of Session in Van Oord UK Ltd v Dragados UK Ltd [2021] CSIH 50.

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