Good faith, the excluder

Abstract

In his famous 1968 paper, Robert Summers drew on Oxbridge linguistic philosophy to claim that ‘good faith’ in contract law is a so-called ‘excluder’: a term without any positive meaning of its own, which serves to exclude or rule out a quite heterogeneous range of different forms of misbehavior. Subsequent contract law scholars have not, I suggest, fully appreciated the significance of Summers’ argument, and indeed many scholars have sought to downplay or resist it. Here I seek to rehabilitate and enhance our understanding of the excluder conception of good faith.