Good Faith, Contracts and Procurement: Analogous Means to Achieving Legal Certainty?

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Richard Harvey

May 2018

A paper based on the Highly Commended entry in the Hudson essay competition 2017

The paper explores the question of whether the construction industry, through the use of intelligent procurement and contract models, is capable of achieving analogous means equivalent to the doctrine of good faith. The author examines the development of the concept of good faith in English case law and the turning tide towards an implied duty and suggests an appraisal of the limbs of such a duty. He goes on to assert that the express terms and processes of early contractor involvement might accomplish the same result as a good faith obligation.

1. Introduction – 2. Good faith: a positivist appraisal of English case law, specific to the construction industry – 2.1 Introduction – 2.2 Reasonable standards of commercial dealing – 2.3 Conditioned by context: the purposive turning tide? – 2.4 An unfettered discretion? – 2.5 Section 2 summary – 3. Intelligent procurement and contracts: analogous means of achieving the same outcome – 3.1 Introduction – 3.2 ECI Processes – 3.3 Section 3 summary – 4. Conclusion.

The author: Richard Harvey is a Legal Advisor at Ramboll UK Ltd.

Text: 13 pages

Paper number: 
May 2018, online, 260k

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