The Subjects of Bhasin: Good Faith and Relational Theory

Abstract

Projects of substantive legal equality tend to focus on public law, constitutionality, and legislative reform. But what potential does private law hold for these projects? In this article, I consider a critical reading of a recent case that suggests one answer. The Supreme Court of Canada's decision in Bhasin v Hrynew (2014) recognized good faith as an organizing principle in Canadian contract law. By doing so, Bhasin has arguably destabilized traditional views of the contractual subject--with this decision, a more relational vision of the self is making its way towards the outer reaches of our commercial law. At the same time, the new doctrines set out in Bhasin are not clear, and they may yet crystallize as obstacles on this path. After sketching the hegemonic view of the self currently enacting contract law, I will recruit feminist theory to describe an alternate relational version. In the light thrown by these two subjects, this article will analyze the decision to determine what doorways it opens for further doctrinal development in order to ask how feminist theory makes possible a vision of legal doctrine more open to marginalized perspectives. Changes like the doctrinal change in Bhasin hold out the tantalizing possibility of both symbolic and material gains for oppressed communities.

Keywords: contract law, feminist legal theory, good faith

JEL Classification: K00, K12