Good Faith? Good Grief!
(2014) 17 International Trade and Business Law Review 310
12 Pages Posted: 19 Oct 2015 Last revised: 5 Nov 2015
Date Written: 2014
One of the trickiest aspects of the convergence of differing legal systems and cultures into so-called 'uniform' commercial law is the question of how to deal with legal principles which are incongruent in domestic practices. The Contract for the International Sale of Goods (CISG) purports to be a uniform sales law, joining almost 80 legal systems with Brazil now joining, and while it has managed to advance more successful uniform standards in specific areas, the question of what to do with 'good faith' as it is presented in art 7 of the CISG is still a very delicate one.
In 2000, Prof Bruno Zeller bestowed upon the principle of good faith the apt nick-name 'scarlet pimpernel', referring to the following classic quote from the book of the same name: They seek him here they seek him there...everywhere. Is he in heaven, is he in hell, that ... elusive Pimpernel?
This label has stuck in many CISG commentaries, because it strikes a chord with all commercial lawyers familiar with the concept in their own legal systems, let alone those trying to pin down good faith on a transnational scale. The fact remains, that while good faith is elusive at best in the confines of one system, this elusiveness is magnified a thousand fold when trying to find an acceptable transnational definition. It therefore seems appropriate to pick this topic in a tributary volume to honour Bruno - I know he will appreciate the controversy; this paper aims to make the point that good faith has ceased to be useful, despite its universal palpability, in the contexts of international commercial law and calls for its abolition or its clarification.
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