An anatomy of good faith

Abstract

The concept of good faith spans many areas of private law, yet due to its scattered application, it has resisted coherent definition and is often dismissed as hopelessly fragmented. This fragmentalist view stems from an output-based approach that defines good faith by the variable duties it produces. This Article reconceptualizes good faith as an “input” standard, a constant attitudinal requirement of an honest and sincere conviction that one is acting properly with respect to the norms and purposes of a given course of conduct. This approach reveals how a single dispositional standard of good faith generates distinct legal obligations without shifting in meaning.

The Article then tests this framework across a range of distinct legal contexts. After examining the doctrinal meaning of good faith, it distinguishes good faith’s role in protecting the performance of voluntarily assumed obligations from its other roles in private law. The Article argues that good faith in performance requires upholding the parties’ legitimate expectations arising from their arrangement, this being an approach that gives due respect to party autonomy. It then examines this proposal’s implications, including the distinction between good faith and fair dealing, and the significance of asserting good faith as a core value across the diverse spectrum of contracts, from minimally cooperative to highly collaborative ones. Lastly, by comparing good faith in contract law with its equivalents in trust and fiduciary relationships, this Article illustrates how the distinctive norms of a cooperative relationship shape the practical requirements of good faith.