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====Good Faith and Commercially Reasonable Manner==== | ====Good Faith and Commercially Reasonable Manner==== | ||
Whether a merchant should commit herself to dealing in [[good faith]], or in a [[commercially reasonable manner]], or [[In good faith and a commercially reasonable manner|both]], is one that vexes the legal profession. Especially those in [[US Attorney|America]]. It should not. While doing no more than articulating the [[commercial imperative]] it can put many a tedious, and expensive, [[negotiation]] to the sword. | |||
Whether a merchant should commit | |||
Of course, there is a certain kind of negotiator apt to see phantoms and ghosts at every turn. She has a bleak vision indeed of a counterparty’s general commercial aspirations for his organisation. Hobbesian. | |||
“What if,” she will say, “your traders mendaciously use this clause to bring about my firm’s misfortune in a way I – er – cannot now anticipate?” | |||
=====Litigation risk===== | |||
The one argument against the general principle is that acting “reasonably” is inherently ''vague'' and therefore a source of potential dispute ''in itself'', ''even if'' we always exercise our rights reasonably and in good faith. This is just what you would expect a work-creating lawyer to say. | |||
JC says, “come now”. This is ''constructive'' vaguess - of the good kind — it only presents [[litigation]] risk to clients who don’t trust you — and here you have bigger problems, frankly — or to those whom ''you'' don’t trust — also not without issues. Here, your problem is not the good faith obligation; it’s that you have a lousy client relationship. It hardly affects litigation risk in any case: An unhappy client will take action either way, and will argue a lack of good faith in any case. | |||
A contract is a bond of [[trust]]. How would a merchant explain to his counterparty that he wished to reserve for himself the right to act in ''[[bad faith]]''? | |||
As for [[commercial reasonableness]], yes, ''it admits shades of doubt, and encourages litigation'' — well, for you the great case of {{casenote|Barclays|Unicredit}} should be a source of succour. The fact that “[[in good faith and a commercially reasonable manner]]” is written into the [[Uniform Commercial Code]] should bend the American ear: if it is okay there — and in the {{nyvmcsa}} — why not elsewhere? | |||
As for [[commercial reasonableness]], | |||
In any case, whatever your contract says, if a court finds you have acted wantonly, or in bad faith, do not expect much sympathy when you argue that, by the contract, you were ''entitled'' to. <br> | In any case, whatever your contract says, if a court finds you have acted wantonly, or in bad faith, do not expect much sympathy when you argue that, by the contract, you were ''entitled'' to. <br> |