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 True to Oneself: Sartre's Bad Faith and Freedom

Robert C. Solomon

in Dark Feelings, Grim Thoughts: Experience and Reflection in Camus and Sartre

Sartre’s Being and Nothingness is one of the great books in philosophy of the 20th century. One of the most excerpted and most discussed sections of that book is the chapter on “Bad Faith”. Sartre’s ... More

Sartre’s Being and Nothingness is one of the great books in philosophy of the 20th century. One of the most excerpted and most discussed sections of that book is the chapter on “Bad Faith”. Sartre’s analysis centers on the twin concepts of facticity and transcendence and the complex relationship of the two. He also suggests that bad faith may be inescapable, a thesis seriously challenged here. This chapter also examines Sartre’s famous examples of bad faith in considerable detail.Less

Good Faith

Hector L MacQueen

in European Contract Law: Scots and South African Perspectives

This chapter considers good faith in the Principles of European Contract Law (PECL). It explains that Article 1:201 of PECL declares that each party must act in accordance with good faith and fair ... More

This chapter considers good faith in the Principles of European Contract Law (PECL). It explains that Article 1:201 of PECL declares that each party must act in accordance with good faith and fair dealing, and that this duty may not be excluded or limited by the parties. The chapter argues that the contract laws of the world's uncodified mixed legal systems – in which Common Law and Civil Law sources, rules, concepts and methods have interacted for long periods – often show striking parallels with the results of PECL.Less

The Means of Interpretation Admissible for the Establishment of the Intention of the Parties

Eirik Bjorge

in The Evolutionary Interpretation of Treaties

Chapter 3 takes issue with the perceived wisdom that the approach to treaty interpretation opted for in the Vienna Convention has been that the general rule of interpretation put paid to the notion ... More

Chapter 3 takes issue with the perceived wisdom that the approach to treaty interpretation opted for in the Vienna Convention has been that the general rule of interpretation put paid to the notion of the ‘intention of the parties’. Instead, the Chapter argues that the search for that intention, objectively defined, is the very aim of the process of treaty interpretation. In doing so, the Chapter adopts the view according to which the ‘intention of the parties’ refers to the will of the parties as determined through the application of the various means of interpretation recognized in Articles 31–33 of the Vienna Convention. Through an analysis of how the means of interpretation act together in the establishment of the intention of the parties, the Chapter shows that the evolutionary interpretation of treaties is in no way different from other types of interpretation.Less

The Need for Public Law Standards of Review in Investor-State Arbitrations

William Burke-White and Andreas von Staden

in International Investment Law and Comparative Public Law

In recent years, investment arbitration has increasingly moved from its private law origins into the realm of public law adjudication, but the standards of review applied by ad hoc arbitral tribunals ... More

In recent years, investment arbitration has increasingly moved from its private law origins into the realm of public law adjudication, but the standards of review applied by ad hoc arbitral tribunals have generally not followed step to take account of this development. This chapter argues that public law standards of review should be more deferential to determinations made at the national level than those applicable to disputes of a purely commercial and private law nature, and highlights institutional expertise in public law matters as a key criterion to support this claim. Reviewing select standards of review applied by other international courts and tribunals, the margin of appreciation developed by the European Court of Human Rights is identified as the most preferable alternative to strict scrutiny review, an alternative that provides respondent states with sufficient freedom of action in public law matters while preserving the supervisory role of the international judiciary.Less

Conclusion

Chaim Gans

in A Just Zionism: On the Morality of the Jewish State

The concluding chapter sums up the main points of the book and also spells out the serious ramifications of not implementing a just version of Zionist ideology as argued for in this book. It spells ... More

The concluding chapter sums up the main points of the book and also spells out the serious ramifications of not implementing a just version of Zionist ideology as argued for in this book. It spells out these implications with relation to Zionism's moral standing not only in the present and in the future. It also explains how some features of the necessity defense, which constituted a major component in the justification of the Jewish return to Palestine, impose on Israel obligations toward the Palestinian people. It is argued that Israel's neglect of these obligations affect the legitimacy with which it can rely on the justice of the Zionist past.Less

Good Faith in Contract Performance

E Allan Farnsworth

in Good Faith and Fault in Contract Law

This chapter identifies the great variety of situations in which the issue of good faith in contract performance arises in United States law. It traces the historical origins of the good faith ... More

This chapter identifies the great variety of situations in which the issue of good faith in contract performance arises in United States law. It traces the historical origins of the good faith doctrine and discusses a number of its important applications. It also examines the theoretical debate over the meaning of the concept of good faith and the major issues that currently arise in US law regarding its ambit.Less

The Content and Performance of Contracts of Employment

Mark R. Freedland and Nicola Kountouris

in The Legal Construction of Personal Work Relations

This chapter analyses the doctrines and regulatory techniques which have evolved to ascertain the content of contracts of employment in relation to their performance. It begins by identifying the way ... More

This chapter analyses the doctrines and regulatory techniques which have evolved to ascertain the content of contracts of employment in relation to their performance. It begins by identifying the way in which a whole body of doctrine has evolved with regard to the ‘implied terms’ of contracts of employment. It continues by discussing some specific areas in which the law of contracts of employment interprets, and assigns effects or outcomes to, the eventualities which present themselves or the steps which the parties take in the course or conduct of personal work relations; the areas or locations in question are those of performance of contracts and the regulation of the wage-work bargain, variation of contracts or of their terms, and suspension of contracts.Less

An English Lawyer Looks at American Contract Law

Michael Bridge

in The American Illness: Essays on the Rule of Law

This chapter presents a comparative analysis of U.S. and English contract law. It considers the principles and misgiving about unconscionability and good faith, drawing appropriate comparisons with ... More

This chapter presents a comparative analysis of U.S. and English contract law. It considers the principles and misgiving about unconscionability and good faith, drawing appropriate comparisons with English law. The chapter also looks at the main features of Uniform Commercial Code UCC § 2-302 and then assesses its practical impact.Less

Lecture Three—A Change in Perspective: European Private Law and its Historical Foundations

REINHARD ZIMMERMANN

in Roman Law, Contemporary Law, European Law: The Civilian Tradition Today

This lecture presents a number of examples that highlight the intellectual link between legal history and comparative law. In addition, nearly all these examples emphasise connections existing ... More

This lecture presents a number of examples that highlight the intellectual link between legal history and comparative law. In addition, nearly all these examples emphasise connections existing between civil law and common law. They are intended to demonstrate that there is no wall of incomprehension, except in the minds of lawyers still imbued by ‘the nationalist historiography that originated in the 19th century’. The lecture also discusses historical scholarship and the new ius commune, legal history as a means of understanding the present state of modern private law, the development of legal ideas by way of generalisation, lessons from mixed legal systems, European legal systems as mixed legal systems, the trust (a common law peculiarity?), good faith (a civilian peculiarity?) and legal methodology (judicial precedents, statute interpretation).Less

Good Faith as Contract’s Core Value

Daniel Markovits

in Philosophical Foundations of Contract Law

The duty of good faith is not a separate undertaking of the parties, but an approach towards the duties they have undertaken. It is an attitude of respect for the contract relation. To display good ... More

The duty of good faith is not a separate undertaking of the parties, but an approach towards the duties they have undertaken. It is an attitude of respect for the contract relation. To display good faith performance is to recognize the authority of the contract and of one’s counterparty to insist on performance of its terms. The contractual duty of good faith is thus a private analog of the public duty to obey that attaches (defeasibly) to every law. Similarly, the duty of good faith in performance is not a duty to coordinate optimally, but attaches only to the agreed-upon contract. Although dominant (economic) theories cast good faith as perfecting contracts, the better view makes good faith a more pedestrian ideal. Good faith also takes the measure of contractual solidarity. It allows contracting parties to remain as self-interested and as free as they were before, except that they must accept that the best interpretation of what they agreed to binds them to limit their self-interest. Such contractual solidarity is not lesser than but rather different from more intimate, natural-law-like fiduciary forms of solidarity.Less

The Essence of and Response to the Indeterminacy of Treaty Provisions

Alexander Orakhelashvili

in The Interpretation of Acts and Rules in Public International Law

This chapter focuses on a number of contexts where the policy-abundant indeterminate notions are included in treaties with the effect of impacting the rights and duties of States. These contexts ... More

This chapter focuses on a number of contexts where the policy-abundant indeterminate notions are included in treaties with the effect of impacting the rights and duties of States. These contexts relate to indeterminate margin of appreciation policy notions under the European Convention on Human Rights and the WTO law, ‘self-judging’ clauses of treaty termination under trade, investment and disarmament treaties, and the concept of the threat to the peace under Article 39 of the UN Charter. The principal findings of the chapter relate to the ways of eliminating subjective judgment in interpretation, and to the criteria of locating the observable elements of indeterminate ‘political’ notions included in treaties. The role of judicial review is also addressed to help interpreting indeterminate notions.Less

The Good-Faith Exception

Tracey Maclin

in The Supreme Court and the Fourth Amendment's Exclusionary Rule

This chapter examines the good-faith exception. By 1981, the majority of the Supreme Court shared Justice White's objective to the bar application of the exclusionary rule when police acted in the ... More

This chapter examines the good-faith exception. By 1981, the majority of the Supreme Court shared Justice White's objective to the bar application of the exclusionary rule when police acted in the good-faith belief that their conduct was lawful, and this majority was determined to establish such a rule. What remained unresolved was how the Court would implement that goal. White stated, “There are several types of Fourth Amendment violations that may be said to fall under the rubric of ‘good faith’.” He recognized that a good-faith exception would be available in cases of warrantless arrests—occasions where judges disagree on the issue of probable cause—“no matter how reasonable the grounds for arrest appeared to the officer and though reasonable men could easily differ on the question.” White also signaled, in a footnote discussing the concept of judicial integrity, that his good faith exception was available where police have “reasonably erred in assessing the facts, mistakenly conducted a search authorized under a presumably valid statute, or relied in good faith upon a warrant not supported by probable cause”.Less

Pre-contractual Duties: Two Freedoms and the Contract to Negotiate

Nili Cohen

in Good Faith and Fault in Contract Law

This chapter considers a broad spectrum of duties and liabilities at the pre-contractual stage. It addresses the interrelations of freedom in the bargaining process, the duty of good faith, and a ... More

This chapter considers a broad spectrum of duties and liabilities at the pre-contractual stage. It addresses the interrelations of freedom in the bargaining process, the duty of good faith, and a contract to negotiate. Two categories of potential defects in the process of contract formation are analysed, the one relating to a defect in the will and the other to a breach of promise or frustration of expectation. It argues that English law grants adequate protection in the first category, but is more reserved in the second.Less

Good Faith in English Contract Law: A Humble “3 by 4” Approach

Mindy Chen-Wishart and Victoria Dixon

in Oxford Studies in Private Law Theory: Volume I

Contrary to orthodoxy, good faith is no stranger to English law. Properly understood, we have been “speaking prose all our lives without knowing it.” The debate over whether to introduce a doctrine ... More

Contrary to orthodoxy, good faith is no stranger to English law. Properly understood, we have been “speaking prose all our lives without knowing it.” The debate over whether to introduce a doctrine of good faith is therefore misconceived—the horse has bolted; the stable door has opened. Rather, the salient questions are: (i) How can a good faith requirement be justified? (ii) What role should it play in the evolution of English contract law? (iii) What does good faith require? And, (iv) how can we start to taxonomize its demands in order to stabilize its requirement? We support a humble role for good faith as an attitude of honesty, fair dealing, and fidelity to the contractual purpose that is, in turn, constitutive of the activity of contracting. These three aspects are manifest in many contract law rules that apply with different intensity and effect to the four categories of contracts that we identify. This is our proposed taxonomy “3 by 4.” Open recognition of this humble version of good faith will: make explicit the implicit ethical content of English contract law, enhance our understanding and organization of many apparently disparate rules, legitimize these rules and facilitate legal development in a manner consistent with common law incrementalism. This leaves open the policy questions of how far and how fast English law should travel down the road of good faith.Less

Good Faith and Remedies for Breach of Contract

Daniel Friedmann

in Good Faith and Fault in Contract Law

This chapter discusses the theory that gaps created in English law by the lack of good faith doctrine are filled in part by the law of remedies. The discretionary remedies of specific performance and ... More

This chapter discusses the theory that gaps created in English law by the lack of good faith doctrine are filled in part by the law of remedies. The discretionary remedies of specific performance and injunction are likely to be denied to a party who acted unfairly or in breach of the requirement of good faith. These remedies are thus utilized to control contractual behaviour. Even the non-discretionary remedy of damages embodies rules, such as those on mitigation, which discourage unfair conduct. The chapter also discusses the self-help remedy of termination and the various limitations upon its application, which are based upon ideas akin to that of good faith.Less

Framing Incomplete Contracts

in Calculating Promises: The Emergence of Modern American Contract Doctrine

Incomplete contracts and the implication of terms in contract disputes are the subjects of a considerable debate in legal scholarship and judicial opinion. This debate plays an indirect role in a ... More

Incomplete contracts and the implication of terms in contract disputes are the subjects of a considerable debate in legal scholarship and judicial opinion. This debate plays an indirect role in a cultural conflict over the individual subject and has centered on questions of how courts should supply missing contract terms, as well as what those missing terms should be. This chapter discusses the significance and effects of this debate by looking at the major attempts to deal with the problem in the scholarly literature, and also examines the relationship of the various scholarly discussions of incompleteness to the implied covenant of good faith. Furthermore, it considers the division of functions between interpretation and the determination of legal relations, or construction. Finally, the chapter comments on hypothetical bargain theory and default rules analysis.Less

Questions of Trust

Neil MacCormick

in Practical Reason in Law and Morality

This chapter considers the place of mutual trust in human engagements, both in relation to honesty and truthfulness in communication and in relation to good faith in contracts, promises, and the like.

Roman Policy in Greece and Asia Minor

Sviatoslav Dmitriev

in The Greek Slogan of Freedom and Early Roman Politics in Greece

Chapter 7 studies the principles of Rome’s relationship with individual Greek communities, whose “freedom” consisted of several components: the freedom to keep possessions, ... More

Chapter 7 studies the principles of Rome’s relationship with individual Greek communities, whose “freedom” consisted of several components: the freedom to keep possessions, freedom from taxes, freedom from being garrisoned, and freedom to use one’s laws. Rome adapted to this complex understanding of freedom in the early second century. Surrendering into the Roman trust (fides) began to be reciprocated by a Roman pledge to preserve the status of individual Greek cities, provided they remained loyal to Rome. The status of Greek cities (including their “freedom”) now depended on their political stance, or in other words, on their “good faith” in Rome. “Good faith” was pledged by both sides, constituting a bond of reciprocal obligations, which formed a network of patron-client relationships between Rome and individual Greek cities, thus laying the foundation of the “Roman peace” (Pax Romana) in the second century b.c.Less

The Role of the Principle of Good Faith in Treaty Shopping

Jorun Baumgartner

in Treaty Shopping in International Investment Law

As Chapter 9 submits, the (public international law) principle of good faith is key to understanding the distinction between ‘legitimate nationality planning’ and ‘abusive treaty shopping’. Yet, the ... More

As Chapter 9 submits, the (public international law) principle of good faith is key to understanding the distinction between ‘legitimate nationality planning’ and ‘abusive treaty shopping’. Yet, the principle comes in many concretizations and manifestations, and arbitral tribunals have taken different approaches towards it in the research question at issue. This heterogeneity of approaches, though understandable in a system formally based on bilateral relationships and without precedent, has added to a picture of inconsistent jurisprudence, furthering legal insecurity in a matter where the lines are already blurry. The chapter analyses the different uses of the principle of good faith (such as abuse of rights, ‘piercing of the veil’, nemo dat quod non habet, etc.) by arbitral tribunals in distinguishing the ‘right’ from the ‘wrong’ kind of treaty shopping and proposes a systematic approach towards this question.Less