Template:Good faith capsule: Difference between revisions
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===“[[Good faith]] and [[commercially reasonable manner]]” as a general standard=== | ===“[[Good faith]] and [[commercially reasonable manner]]” as a general standard=== | ||
Whether a merchant should commit himself to dealing in [[good faith]], or in a [[commercially reasonable manner]], is one that vexes | Whether a merchant should commit himself 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 many of our learned friends. Especially those in [[US Attorney|America]]. The only discomfort it should occasion is to a solicitor’s<ref>Being an officer of the court, American friends, and not someone who goes door-to-door selling encyclopaedias.</ref> livelihood, for this magic expression, while doing no more than articulating the [[commercial imperative]] and the basic commercial outlook of a [[good egg]], puts many a tedious [[negotiation]] to the sword. | ||
Everyone benefits but officers of Her Majesty's — or (''cough'') the People’s — courts. | Everyone benefits but officers of Her Majesty's — or (''cough'') the People’s — courts. | ||
“[[In good faith and a commercially reasonable manner]]” cuts the crap and promises to unlock some negotiations and take the [[tedious]] line-by-line muck-raking out of others. It only presents [[litigation]] risk to clients who don’t trust you — and here you have bigger problems, frankly — or whom you don’t trust — also not without issues. Here, your problem is not that you have a 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 {{tag|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]]''? | A {{tag|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]], and that objection I can already see you formulating that it admits shades of doubt, and encourages litigation | As for [[commercial reasonableness]], and that objection I can already see you formulating that ''it admits shades of doubt, and encourages litigation'' — well, for you the great case of {{casenote|Barclays|Unicredit}} should be a source of succour. <br> | ||
And for you Americans, for whom {{casenote|Barclays|Unicredit}} is of persuasive value only, there is the fact that | And for you Americans, for whom {{casenote|Barclays|Unicredit}} is of persuasive value only, there is the fact that “[[in good faith and a commercially reasonable manner]]” is written into the [[Uniform Commercial Code]] should bend your ear: if it is okay there — and in the {{nyvmcsa}} — why not elsewhere? | ||
Revision as of 12:27, 16 January 2020
“Good faith and commercially reasonable manner” as a general standard
Whether a merchant should commit himself to dealing in good faith, or in a commercially reasonable manner, or both, is one that vexes many of our learned friends. Especially those in America. The only discomfort it should occasion is to a solicitor’s[1] livelihood, for this magic expression, while doing no more than articulating the commercial imperative and the basic commercial outlook of a good egg, puts many a tedious negotiation to the sword.
Everyone benefits but officers of Her Majesty's — or (cough) the People’s — courts.
“In good faith and a commercially reasonable manner” cuts the crap and promises to unlock some negotiations and take the tedious line-by-line muck-raking out of others. It only presents litigation risk to clients who don’t trust you — and here you have bigger problems, frankly — or whom you don’t trust — also not without issues. Here, your problem is not that you have a 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, and that objection I can already see you formulating that it admits shades of doubt, and encourages litigation — well, for you the great case of Barclays v Unicredit should be a source of succour.
And for you Americans, for whom Barclays v Unicredit is of persuasive value only, there is the fact that “in good faith and a commercially reasonable manner” is written into the Uniform Commercial Code should bend your ear: if it is okay there — and in the 2016 NY Law VM CSA — why not elsewhere?
- ↑ Being an officer of the court, American friends, and not someone who goes door-to-door selling encyclopaedias.