Robert C. Solomon
- Published in print:
- 2006
- Published Online:
- September 2006
- ISBN:
- 9780195181579
- eISBN:
- 9780199786602
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0195181573.003.0006
- Subject:
- Philosophy, History of Philosophy
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 ...
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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
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.
Hector L MacQueen
- Published in print:
- 2006
- Published Online:
- March 2012
- ISBN:
- 9780748624256
- eISBN:
- 9780748651429
- Item type:
- chapter
- Publisher:
- Edinburgh University Press
- DOI:
- 10.3366/edinburgh/9780748624256.003.0002
- Subject:
- Law, Company and Commercial Law
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 ...
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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
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.
Eirik Bjorge
- Published in print:
- 2014
- Published Online:
- September 2014
- ISBN:
- 9780198716143
- eISBN:
- 9780191784873
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198716143.003.0003
- Subject:
- Law, Public International Law, Legal History
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 ...
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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
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.
William Burke-White and Andreas von Staden
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780199589104
- eISBN:
- 9780191595455
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199589104.003.0022
- Subject:
- Law, Constitutional and Administrative Law, Public International 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 ...
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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
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.
Jack Beatson and Daniel Friedman (eds)
- Published in print:
- 1997
- Published Online:
- March 2012
- ISBN:
- 9780198265788
- eISBN:
- 9780191682964
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198265788.001.0001
- Subject:
- Law, Law of Obligations
This chapter brings together the work of many of the world's leading Contract Law scholars. It focuses upon a common central theme: the question of good faith and fair dealing in the Law of Contract. ...
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This chapter brings together the work of many of the world's leading Contract Law scholars. It focuses upon a common central theme: the question of good faith and fair dealing in the Law of Contract. The book is divided into several parts: the first part is an Introduction; Part II examines the requirement of good faith and its role in the formation of contracts; Part III is concerned with contractual obligations; Part IV examines breach of contract and remedial issues.Less
This chapter brings together the work of many of the world's leading Contract Law scholars. It focuses upon a common central theme: the question of good faith and fair dealing in the Law of Contract. The book is divided into several parts: the first part is an Introduction; Part II examines the requirement of good faith and its role in the formation of contracts; Part III is concerned with contractual obligations; Part IV examines breach of contract and remedial issues.
E Allan Farnsworth
- Published in print:
- 1997
- Published Online:
- March 2012
- ISBN:
- 9780198265788
- eISBN:
- 9780191682964
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198265788.003.0006
- Subject:
- Law, Law of Obligations
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 ...
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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
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.
Chaim Gans
- Published in print:
- 2008
- Published Online:
- September 2008
- ISBN:
- 9780195340686
- eISBN:
- 9780199867172
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195340686.003.0007
- Subject:
- Political Science, Comparative Politics, International Relations and Politics
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 ...
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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
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.
Mark R. Freedland and Nicola Kountouris
- Published in print:
- 2011
- Published Online:
- January 2012
- ISBN:
- 9780199551750
- eISBN:
- 9780191731013
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199551750.003.0006
- Subject:
- Law, Employment Law
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 ...
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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
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.
Daniel Markovits
- Published in print:
- 2014
- Published Online:
- March 2015
- ISBN:
- 9780198713012
- eISBN:
- 9780191781414
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198713012.003.0014
- Subject:
- Law, Philosophy of Law, Law of Obligations
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 ...
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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 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.
Michael Bridge
- Published in print:
- 2013
- Published Online:
- October 2013
- ISBN:
- 9780300175219
- eISBN:
- 9780300195071
- Item type:
- chapter
- Publisher:
- Yale University Press
- DOI:
- 10.12987/yale/9780300175219.003.0014
- Subject:
- Political Science, American Politics
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 ...
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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
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.
REINHARD ZIMMERMANN
- Published in print:
- 2001
- Published Online:
- January 2010
- ISBN:
- 9780198299134
- eISBN:
- 9780191708046
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198299134.003.0004
- Subject:
- Law, Comparative Law
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 ...
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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
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).
Tracey Maclin
- Published in print:
- 2012
- Published Online:
- May 2013
- ISBN:
- 9780199795475
- eISBN:
- 9780199979684
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199795475.003.0014
- Subject:
- Law, Criminal Law and Criminology, Human Rights and Immigration
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 ...
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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
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”.
- Published in print:
- 2006
- Published Online:
- June 2013
- ISBN:
- 9780804753982
- eISBN:
- 9780804768054
- Item type:
- chapter
- Publisher:
- Stanford University Press
- DOI:
- 10.11126/stanford/9780804753982.003.0010
- Subject:
- Law, Legal History
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 ...
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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
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.
Nili Cohen
- Published in print:
- 1997
- Published Online:
- March 2012
- ISBN:
- 9780198265788
- eISBN:
- 9780191682964
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198265788.003.0002
- Subject:
- Law, Law of Obligations
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 ...
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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
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.
Daniel Friedmann
- Published in print:
- 1997
- Published Online:
- March 2012
- ISBN:
- 9780198265788
- eISBN:
- 9780191682964
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198265788.003.0016
- Subject:
- Law, Law of Obligations
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 ...
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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
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.
Alexander Orakhelashvili
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780199546220
- eISBN:
- 9780191720000
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199546220.003.0018
- Subject:
- Law, 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 ...
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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
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.
Jorun Baumgartner
- Published in print:
- 2016
- Published Online:
- January 2017
- ISBN:
- 9780198787112
- eISBN:
- 9780191829185
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198787112.003.0010
- Subject:
- Law, Public International 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 ...
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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
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.
Neil MacCormick
- Published in print:
- 2008
- Published Online:
- May 2009
- ISBN:
- 9780198268772
- eISBN:
- 9780191713071
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198268772.003.0005
- Subject:
- Law, Philosophy of Law
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.
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.
REINHARD ZIMMERMANN, DANIEL VISSER, and KENNETH REID
- Published in print:
- 2005
- Published Online:
- March 2012
- ISBN:
- 9780199271009
- eISBN:
- 9780191699481
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199271009.003.0004
- Subject:
- Law, Comparative Law
The role that good faith plays in the law of contract is very much a topical question in both Scotland and South Africa. It is probably fair to say that the key question for both systems is whether ...
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The role that good faith plays in the law of contract is very much a topical question in both Scotland and South Africa. It is probably fair to say that the key question for both systems is whether good faith operates as an overriding principle or whether it takes the form of piecemeal solutions to specific problems. This chapter reviews the traditional approaches in the two systems before considering whether an overriding principle has now emerged in either system. It concludes by considering how the law is likely to develop in the future.Less
The role that good faith plays in the law of contract is very much a topical question in both Scotland and South Africa. It is probably fair to say that the key question for both systems is whether good faith operates as an overriding principle or whether it takes the form of piecemeal solutions to specific problems. This chapter reviews the traditional approaches in the two systems before considering whether an overriding principle has now emerged in either system. It concludes by considering how the law is likely to develop in the future.
Martin Davies and David V. Snyder
- Published in print:
- 2014
- Published Online:
- August 2014
- ISBN:
- 9780195388183
- eISBN:
- 9780199382590
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195388183.003.0003
- Subject:
- Law, Company and Commercial Law
The different legal ideas of precontractual liability, contract formation, contract terms, and contract interpretation are all rolled into this chapter because they spring from a single set of facts: ...
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The different legal ideas of precontractual liability, contract formation, contract terms, and contract interpretation are all rolled into this chapter because they spring from a single set of facts: the negotiation and making of the contract for sale. The legal doctrines are treated separately, but their unification by one set of facts is emphasized. The chapter includes treatment of offer and acceptance, sufficient definiteness, formal requirements (or the lack of them), gapfilling, and the role of custom and practice, as well as common law doctrines like promissory estoppel and the parol evidence rule. The chapter gives generous comparative treatment to revocability and firm offers, the battle of the forms, contract modification, and subjective and objective intent. Civil law doctrines like abus de droit and culpa in contrahendo are also covered, and there is extensive treatment of good faith in international law.Less
The different legal ideas of precontractual liability, contract formation, contract terms, and contract interpretation are all rolled into this chapter because they spring from a single set of facts: the negotiation and making of the contract for sale. The legal doctrines are treated separately, but their unification by one set of facts is emphasized. The chapter includes treatment of offer and acceptance, sufficient definiteness, formal requirements (or the lack of them), gapfilling, and the role of custom and practice, as well as common law doctrines like promissory estoppel and the parol evidence rule. The chapter gives generous comparative treatment to revocability and firm offers, the battle of the forms, contract modification, and subjective and objective intent. Civil law doctrines like abus de droit and culpa in contrahendo are also covered, and there is extensive treatment of good faith in international law.
