Good Faith? Good Grief!

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Abstract

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.
Original languageEnglish
Pages (from-to)310-321
JournalInternational Trade and Business Law Review
Volume17
Publication statusPublished - 2014

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