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Template:Good faith capsule: Difference between revisions
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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 | “[[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 may help persuade a nervous counterparty across that wobbly bridge to [[Consensus ad idem|consensus]]: one who had said “ahh, but you see, with ''that'' provision, your client could literally do [... ''and here insert some fantastical deed that your counterpart has dreamt up'' ...] without any commercially reasonable basis for doing so” and so on. | ||
'''Litigation risk''': The one argument against the general principle is that it is inherently vague and therefore a source of potential dispute ''in itself'', ''even if'' we always exercise our rights reasonably and in good faith. But come now — it only presents [[litigation]] risk to clients who don’t trust you — and here you have bigger problems, frankly — or for 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 {{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'' — well, for you the great case of {{casenote|Barclays|Unicredit}} should be a source of succour. | 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. 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? | ||
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> | |||