The Duty of Good Faith: A Perspective on Contemporary Contract Law
Jay M. Feinman
Volume 66, Issue 4, 937-950
A duty of good faith performance inheres in every contract. Many courts get the contours and application of the duty of good faith wrong. These courts’ restrictive approach ties the good faith duty too closely to the express terms of the contract, requires subjective bad faith to violate the duty, and narrowly defines the standards of conduct that good faith requires.
This Article, presented at a symposium in honor of Charles Knapp, describes the senses in which the courts get good faith wrong: doctrinal, historical, structural, and political/ideological. In doing so, it applies the critical legal studies approach to the duty of good faith and to contemporary contract law in general. The Article concludes by suggesting the political and ideological significance of the courts’ approach to good faith as emblematic of a classical revival in contract law.