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Goodrich, Peter --- "The wrecking ball: good faith, preemption and US exceptionalism" [2017] ELECD 617; in Monateri, Giuseppe Pier (ed), "Comparative Contract Law" (Edward Elgar Publishing, 2017) 385

Book Title: Comparative Contract Law

Editor(s): Monateri, Giuseppe Pier

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781849804516

Section: Chapter 16

Section Title: The wrecking ball: good faith, preemption and US exceptionalism

Author(s): Goodrich, Peter

Number of pages: 23

Abstract/Description:

If two of us make a Bargain, why should either of us stand by it? What need you care what you say, or what need I care what I say? Certainly because there is something about me that tells me Fides est servanda. In the recent US Supreme Court decision Northwest Inc. v. Rabbi Binyomin Ginsberg, Justice Alito, writing for the majority, determined that the contractual duty of good faith is not an element of volitional contracting but a State legislated imposition. Just as the rest of the common law world, including even England, which has had a ‘traditional hostility’ to the doctrine, moves towards the recovery and harmonization of contracting as necessarily subject to implicit and interpretative criteria of good faith, the US common law exposes not only a disturbing degree of exceptionalism but also a logic that is ever increasingly adrift from the history of doctrine and the reason of precedent. At the very moment that good faith, the conscience and equity implied in all promising, and fundamental to the interpretation of all contractual language, is revitalized in other common law jurisdictions, and becomes settled and harmonized in European private law, Brexit notwithstanding, the US Supreme Court strikes out alone. It does so, I will argue, with very limited justifications based primarily in policy and not in any reasoned, let alone scholarly or consistent apprehension of the history and development of the law of contracting.