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An Examination of the Common Law Obligation of Good Faith in the Performance and Enforcement of Commercial Contracts in Australia

Dixon, William Michael (2005) An Examination of the Common Law Obligation of Good Faith in the Performance and Enforcement of Commercial Contracts in Australia. PhD thesis, Queensland University of Technology.

Abstract

This examination of the common law obligation of good faith in the performance and enforcement of commercial contracts in Australia seeks to achieve a number of objectives.

First, to chart the historical development of the implied good faith obligation.

Secondly, to identify a number of issues that remain unresolved at Australian lower court level.

Thirdly, to consider five doctrinal approaches that could be adopted by the High Court when ultimately confronted by the competing claims and tensions that have proven divisive in the courts below.

Fourthly, to assess each approach against three identified benchmarks.

The essential thesis is that good faith should be implied, as a matter of law, in commercial contracts that are relational in nature with an additional call being made for the High Court to explicitly recognise that the underlying basis of the implied good faith obligation is the reasonable expectations of the contractual parties. This approach is the one approach that satisfies all three benchmarks and provides the most satisfactory resolution of the issues that presently bedevil the commercial good faith debate in Australia.

Impact and interest:

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ID Code: 16123
Item Type: QUT Thesis (PhD)
Supervisor: Corones, Stephen& Christensen, Sharon
Keywords: Contract law, Australia, commercial contracts, common law obligation of good faith in contractual performance and enforcement, implied term, origins, meaning, basis of the implied obligation, reasonable expectations, community standards, obligation to act reasonably, fiduciary obligation, correlation with equitable and/or statutory unconscionability, class of contract, discrete-relational continuum, empirical studies, content, drafting implications, judicial licence, future approaches.
Divisions: Current > QUT Faculties and Divisions > Faculty of Law
Current > Schools > School of Law
Department: Faculty of Law
Institution: Queensland University of Technology
Copyright Owner: Copyright William Michael Dixon
Deposited On: 03 Dec 2008 13:57
Last Modified: 29 Oct 2011 05:43

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