good will is good under any condition, its goodness must not depend on any
particular conditions obtaining”. Thus, Kant points out that a good will must then
also be good in itself and not in virtue of its relationship to other things such as the
agent’s own happiness, overall welfare or any other effects it may or may not
produce a good will would still ‘shine like a jewel’ even if it were ‘completely
powerless to carry out its aim’.
2 The moot of the hour is whether good faith is
undesirable, far-fetched, uncertain and hence must stay out of the trapezium of a
contract or whether it should be ‘intrinsic’ in its presence as a legal requirement in
contracts.
What role does good faith have in maritime law contracts? Maritime issues are in
themselves at times uncharted, immediate, heaped under a mountain of unstated
understandings and sometimes a precursor to astronomical figures of liabilities.
What would good faith do in a maritime contract is yet to be visualized in clearer
terms.
The law of contract mandates pre-contractual, contractual and post-contractual
duties, rights and risks that are assessed and allocated by parties to protect their own
interests. This envisages an altar of rights, a labyrinth of liabilities and yet a shelter in
the contract itself in all possible situations that may occur between the parties or may
be due to any extraneous factor affecting the contract. Courts in civil law jurisdictions intervene to interpret terms in a just and fair manner so as to annul any kind of
absurd and unjust outcomes these terms can create by themselves. In common law,
there is certainly a recognition of ‘good faith’ even though at times the concept has
been dodged and rejected.
3
However, there is no certainty as to its legal status as an independent variable to
determine the validity or invalidity of a contract as a cause of action. While civil law
jurisdictions perceive the law and economics of good faith as prevention of opportunism and unfairness,
4 common law jurisdictions perceive parties as independent
and autonomous bodies responsible enough to guard their own interests, although
there have been abrupt and inconsistent deviations from this rigid stance. Furthermore, there is no unanimity over the definition of ‘good faith’. However, this
definitional inadequacy of ‘good faith’ makes it a powerful and decisive element
that could shape a legal situation for the benefit of both the parties with just
outcomes.
We shall analyse what “good faith” as a principle implies for maritime law
contracts generally and what parties could do to protect their interests in light of
the uncertainty of how the principle of good faith is treated in common law
jurisdictions. It is yet to be understood if parties should be bound by an obligation
of good faith as a stand-alone legal concept or if parties are better off without
creating an obligation for a concept that according to certain scholars and jurists
remains extraneous to the principles of contract. Good faith has been applied
2 https://plato.stanford.edu/entries/kant-moral/#GooWilMorWorDut.
3 Colombo (2012), pp. 23–59.
4 https://www.researchgate.net/publication/318012840_Good_Faith.
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S. Choudhury and P. Das
particular conditions obtaining”. Thus, Kant points out that a good will must then
also be good in itself and not in virtue of its relationship to other things such as the
agent’s own happiness, overall welfare or any other effects it may or may not
produce a good will would still ‘shine like a jewel’ even if it were ‘completely
powerless to carry out its aim’.
2 The moot of the hour is whether good faith is
undesirable, far-fetched, uncertain and hence must stay out of the trapezium of a
contract or whether it should be ‘intrinsic’ in its presence as a legal requirement in
contracts.
What role does good faith have in maritime law contracts? Maritime issues are in
themselves at times uncharted, immediate, heaped under a mountain of unstated
understandings and sometimes a precursor to astronomical figures of liabilities.
What would good faith do in a maritime contract is yet to be visualized in clearer
terms.
The law of contract mandates pre-contractual, contractual and post-contractual
duties, rights and risks that are assessed and allocated by parties to protect their own
interests. This envisages an altar of rights, a labyrinth of liabilities and yet a shelter in
the contract itself in all possible situations that may occur between the parties or may
be due to any extraneous factor affecting the contract. Courts in civil law jurisdictions intervene to interpret terms in a just and fair manner so as to annul any kind of
absurd and unjust outcomes these terms can create by themselves. In common law,
there is certainly a recognition of ‘good faith’ even though at times the concept has
been dodged and rejected.
3
However, there is no certainty as to its legal status as an independent variable to
determine the validity or invalidity of a contract as a cause of action. While civil law
jurisdictions perceive the law and economics of good faith as prevention of opportunism and unfairness,
4 common law jurisdictions perceive parties as independent
and autonomous bodies responsible enough to guard their own interests, although
there have been abrupt and inconsistent deviations from this rigid stance. Furthermore, there is no unanimity over the definition of ‘good faith’. However, this
definitional inadequacy of ‘good faith’ makes it a powerful and decisive element
that could shape a legal situation for the benefit of both the parties with just
outcomes.
We shall analyse what “good faith” as a principle implies for maritime law
contracts generally and what parties could do to protect their interests in light of
the uncertainty of how the principle of good faith is treated in common law
jurisdictions. It is yet to be understood if parties should be bound by an obligation
of good faith as a stand-alone legal concept or if parties are better off without
creating an obligation for a concept that according to certain scholars and jurists
remains extraneous to the principles of contract. Good faith has been applied
2 https://plato.stanford.edu/entries/kant-moral/#GooWilMorWorDut.
3 Colombo (2012), pp. 23–59.
4 https://www.researchgate.net/publication/318012840_Good_Faith.
116
S. Choudhury and P. Das