remains substantially intact with the result that, except in a small number of cases, there is no duty to disclose facts peculiarly within the knowledge of one of the parties, due in part to the historical strength of the common law rule of caveat emptor. Whilst there is a well established rule that a contracting party must not actively mislead the other by means of an actionable misrepresentation, English law has not gone down the road requiring contracting parties to reveal to the other all facts relevant to the contract which is being negotiated. DISCLOSURE OF MATERIAL FACTS AND THE REQUIREMENT OF GOOD FAITH

1995 ◽  
pp. 217-219
Keyword(s):  
Common Law ◽  
Good Faith ◽  
The Other ◽  
Caveat Emptor ◽  
The Road ◽  
The Common ◽  
English Law

Common Lawà l'americaine

1966 ◽  
Vol 1 (4) ◽  
pp. 562-579 ◽  
Author(s):  
A. M. Apelbom
Keyword(s):  
Common Law ◽  
The Other ◽  
British Occupation ◽  
Other Hand ◽  
Two Generations ◽  
The Common ◽  
English Law ◽  
Considerable Body ◽  
Clear Line

Eighteen years after attaining independence Israel remains essentially a common law country. Introduced by the British Mandatory administration to supplement the Ottoman legislation in force at the time of the British occupation of Palestine, the common law has been retained by the Israeli legislator, so far as not modified or replaced by local legislation. But this common law, far from being residual only, also embraces a considerable body of interstitial law developed by two generations of judges, British, Palestinian and Israeli, in the process of applying and interpreting statute law—whether Ottoman, Mandatory or Israeli—according to common law methods. On the other hand the importation of common law institutions was neither wholesale nor systematic and in a number of fields no clear line of demarcation can be drawn between domestic and English law.

16. Unconscionability and unfairness

2018 ◽  
Author(s):  
Elizabeth Macdonald ◽  
Ruth Atkins ◽  
Jens Krebs
Keyword(s):  
Bargaining Power ◽  
Common Law ◽  
Good Faith ◽  
The Other ◽  
Freedom Of Contract ◽  
English Law ◽  
Unfair Terms

This chapter is concerned with unconscionability, good faith, and inequality of bargaining power. It is often stated that there are no such general doctrines in English Law. Concerns about uncertainty clearly play a part in this, and there is a tension between freedom of contract and intervening in the bargain reached by the parties on the basis of its substantive unfairness. There has, of course, been legislative intervention in relation to the use of unfair exemption clauses and unfair terms, more generally, in the consumer context (see Chapters 10 and 11) and, before such legislation, in particular, judges were prepared to manipulate common law rules on incorporation and construction (see Chapter 9) to deal with unfairness. This chapter principally deals with cases in which the courts have intervened in a contract, or refused to enforce it, where one party had some weakness in his or her position, in relation to the other, and that other has gained unduly advantageous terms.

scholarly journals (Mis)Understanding The Once-and-For-All Rule Member of The Executive Council for Health and Social Development, Gauteng v DZ obo WZ 2018 (1) SA 335 (CC)

Obiter ◽  
2019 ◽  
Vol 40 (3) ◽  
Author(s):  
André Mukheibir
Keyword(s):  
Social Development ◽  
Occupational Injuries ◽  
Common Law ◽  
Road Accident ◽  
The Other ◽  
Constitutional Court ◽  
Executive Council ◽  
The Road ◽  
The Common ◽  
The Law

The “once-and-for-all” rule (OAFA rule) originated in English law. This rule entails that a plaintiff may not bring more than one action for damages, insofar as this action is based on the same cause of action. The rule has particular significance for prospective loss because where a prospective loss is based on the same cause of action as past loss, the claim for the prospective loss has to be brought at the same time as the claim for past loss. It stands to reason, therefore, that a claim cannot be instituted too soon because the damage arising from the delictual conduct has to be assessed properly. On the other hand, because all delictual claims prescribe after three years, the action for damages has to be brought before three years have passed. Between the OAFA rule and the prescription of a delictual claim, there is not much opportunity for a plaintiff to become aware of the true extent of his or her future loss.The Constitutional Court in Member of the Executive Council for Health and Social Development, Gauteng v DZ obo WZ (2018 (1) SA 335 (CC) (MEC Health)) recently had to consider whether the common law, insofar as it relates to the OAFA rule, should be developed to make provision for instalment or periodic payments. The majority, per Froneman J, held that the law did not make provision for instalment payments but that any amendment to the rule should be left to the legislature. Jafta J, in his minority decision, held that it was not necessary to develop the common law, as it already made provision for instalment payments.The purpose of this note is to show that the majority decision in MEC Health is based on an incorrect understanding of the nature and purpose of the rule, and that the rule does not necessarily exclude periodic or instalment payments. Awarding periodic payments in the case of prospective loss will, furthermore, result in a fairer dispensation, which is also, as is shown below, more aligned with the fundamental principles of the law of delictual damages. Provision is already made for periodic payments in the case of compensation schemes such as the Road Accident Fund Act (56 of 1996) and the Road Accident Benefit Scheme Bill (B17 2017, which will replace the Road Accident Fund Act) and the Compensation for Occupational Injuries and Diseases Act (30 of 1993).

Good Faith in English Contract Law

2020 ◽  
pp. 187-232
Author(s):  
Mindy Chen-Wishart ◽  
Victoria Dixon
Keyword(s):  
Common Law ◽  
Contract Law ◽  
Good Faith ◽  
Fair Dealing ◽  
Legal Development ◽  
The Road ◽  
Ethical Content ◽  
English Law

Contrary to orthodoxy, good faith is no stranger to English law. Properly understood, we have been “speaking prose all our lives without knowing it.” The debate over whether to introduce a doctrine of good faith is therefore misconceived—the horse has bolted; the stable door has opened. Rather, the salient questions are: (i) How can a good faith requirement be justified? (ii) What role should it play in the evolution of English contract law? (iii) What does good faith require? And, (iv) how can we start to taxonomize its demands in order to stabilize its requirement? We support a humble role for good faith as an attitude of honesty, fair dealing, and fidelity to the contractual purpose that is, in turn, constitutive of the activity of contracting. These three aspects are manifest in many contract law rules that apply with different intensity and effect to the four categories of contracts that we identify. This is our proposed taxonomy “3 by 4.” Open recognition of this humble version of good faith will: make explicit the implicit ethical content of English contract law, enhance our understanding and organization of many apparently disparate rules, legitimize these rules and facilitate legal development in a manner consistent with common law incrementalism. This leaves open the policy questions of how far and how fast English law should travel down the road of good faith.

Contract Law in Practice

2021 ◽  
Author(s):  
Andrews Neil
Keyword(s):  
Common Law ◽  
Case Law ◽  
Detailed Examination ◽  
Contract Law ◽  
Good Faith ◽  
Fair Dealing ◽  
Freedom Of Contract ◽  
Compensation Principle ◽  
The Common ◽  
English Law

This book is a detailed examination of the general doctrines of English law of contract. Cases are analysed precisely, providing quick access to the major authoritative passages in the leading judgments. The coverage is comprehensive. It focuses on English law, but it also provides analysis of assistance throughout the Common Law family of legal systems. It provides up-to-date examination of case law developments. There are nearly fifty ‘evaluation’ sections which provide comment on controversial or unclear topics. Six major principles are identified: Freedom of Contract; Objectivity; the Contractual Bond Principle; Estoppel; Good Faith and Fair Dealing; the Compensation Principle.

The Coalition's Plan to Regulate Industrial Relations

1993 ◽  
Vol 4 (1) ◽  
pp. 1-26 ◽  
Author(s):  
Braham Dabscheck
Keyword(s):  
Common Law ◽  
Industrial Relations ◽  
Good Faith ◽  
The Common ◽  
Industrial Conflict ◽  
The Law

In October 1992 the federal coalition released Jobsback, a statement of its industrial relations policies. The article situates Jobsback in the context of the evolution of the coalition's industrial relations policies since the Fraser years, outlines its major features, and provides a critique. Jobsback erects a new regulatory schema under a banner of deregulation. Three key elements are contained in Jobsback. They are tribunal avoidance and the use of the common law, legislatively imposed employment rules to ‘aid’ the transition from an award to a non-award system, and enterprise confinement. The article draws attention to the coalition's views concerning industrial conflict, constitutional issues, transitional problems associated with establishing legislatively imposed workplace rules, minima in workplace agreements, the Office of the Employee Advocate, equality before the law and good faith bargaining.

Nature Versus the Common Law

2021 ◽  
Author(s):  
David B. Schorr
Keyword(s):  
Common Law ◽  
Local Environment ◽  
Water Law ◽  
Public Ownership ◽  
Normative Force ◽  
The Common ◽  
English Law

This article recovers a debate, played out over the course of a century, in courts across the « common law world », over whether nature had normative force in water law. It explores areas of water law, such as the extent of public ownership in rivers and the effects of shifting watercourses on ownership, in which some courts, not without controversy, departed from the established rules of English law in order to make rules more appropriate, as they saw it, to the local environment.

scholarly journals GOOD FAITH IN FRANCHISE CONTRACT

2020 ◽  
Vol 5 (19) ◽  
pp. 118-127
Author(s):  
Nurli Yaacob ◽  
Nasri Naiimi
Keyword(s):  
Common Law ◽  
Good Faith ◽  
Relational Contracts ◽  
Law System ◽  
Freedom Of Contract ◽  
Term Contract ◽  
The Common ◽  
Definition Of ◽  
The Right

Good faith has been defined as justice, fairness, reasonableness, decency, taking no chances, and so on. The concept of good faith has long been rooted in contract law under the jurisdiction of Civil law, although the definition of it is still debated until today. However, the view of the Common Law tradition does not recognize the concept of good faith as long as the contract is entered into with the freedom of contract and both parties abide by the terms of the contract. Given that a franchise contract involves a long-term contract and always been developed, it is impossible to define both rights and responsibilities base on express terms only. As such, the franchise contract gives the franchisor the right to exercise its discretion in executing the contract. It is in this context that the element of good faith is very important to ensure that the franchisor does not take advantage of the franchisee and that the business continues to prosper. Therefore, the objective of this article is to discuss the concept of good faith in a franchise contract. The findings show that the common law system that initially rejected the application of the concept of good faith also changed its approach and began to recognize the concept of good faith as it is very important for relational contracts such as franchise contracts.

scholarly journals THE PROBLEM OF THE NON-JUSTICIABILITY OF RELIGIOUS DEFAMATIONS

2015 ◽  
Vol 27 ◽  
pp. 241-257 ◽  
Author(s):  
Peter Smith
Keyword(s):  
Catholic Church ◽  
Common Law ◽  
The State ◽  
Modern Times ◽  
Civil Case ◽  
Magna Carta ◽  
The Common ◽  
English Law

English law has long held the principle that religions should be free from interference by the state in certain matters. The original 1215 edition of the Magna Carta proclaimed, as its first article, ‘THAT WE HAVE GRANTED TO GOD, and by this present charter have confirmed for us and our heirs in perpetuity, that the English Church shall be free, and shall have its rights undiminished, and its liberties unimpaired.’This article was intended to protect the established Catholic Church from the powers of the state, specifically from interference in church elections by the executive in the form of the person of the monarch. The notion that religions were institutions with practices and beliefs that were outside the control of the state in certain respects was adopted by the common law and is found in modern times in the principle of non-justiciability on the matter of religion in certain types of civil case. 

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