Good Faith and Terms Implied in Law
Three additonal observations may be apposite. One point that comes out very strongly in our study is the intimate relationship between good faith and interpretation. Even within a given legal system both are often closely interwoven or indeed employed as alternative ways of analysing a case.
In England, the concept of an implied term is frequently resorted to.379 If an English lawyer is uncomfortable with an open-textured provision like § 242 BGB, his continental counterpart is often surprised how readily English judges find (or, as he might see it, pretend to find) a term paving the way towards an equitable solution implied in the contract. If, for instance, if we look at terms implied in law in contracts of sale, contracts of employment, and landlord-tenant relationships, we find a host of ancillary duties to have been recognized: duties of cooperation, disclosure, information, protection, and mutual trust and confidence.380 To a very considerable extent English courts are thus giving effect to evaluations, increasingly based on the notion of reasonableness,381 to which a German lawyer would apply the label of good faith. From the point of view of both the practical results and the policy considerations employed in the process of reasoning there are significant parallels between the legal systems.579 For a comparative analysis, see Martin Schmidt-Kessel, 'Implied Term: Auf der Suche nach dem Funktionsaquivalenl', (1997) 96 Zeilschrift filr vergleichcnde Rechlswissenschiift 101 if.; Wolfgang Grobecker, Implied Terms und Treu und Glauhen (1999); cf. also Johan Sleyn, 'Contract Law: Fulfilling the Reasonable Expectations of Honest Men', (1997) 113 LQR 450: 'there is not a world of difference between the objective requirement of good faith and the reasonable expectations of the parties.' ■v*' For all details, see Grobecker (n. 379) 186 if.
·*” See, in particular, Scully v. Southern Health mid Social Services Board 1199211 AC 294; Johnstone v. Bloomsbury Health Authority 11992) QB 333 and the analysis by Grobecker (n. 379) 94 if., 152 if.
5.
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