Cookies?
Library Header Image
LSE Research Online LSE Library Services

Good faith and fair dealing as an underenforced legal norm

MacMahon, Paul (2015) Good faith and fair dealing as an underenforced legal norm. Minnesota Law Review, 99 (6). pp. 2051-2110. ISSN 0026-5535

[img]
Preview
PDF - Published Version
Download (601kB) | Preview

Abstract

American contract law includes a duty of good faith and fair dealing in the performance of every contract. The duty appears, on first reading, to authorize judges to attach sanctions whenever one party to a contract acts unreasonably towards another. But judicial practice very often falls short of such an expansive standard. This article proposes a novel interpretation of the doctrine that accommodates both the rhetoric of good faith and fair dealing and the reality of judicial enforcement. Good faith and fair dealing, the article contends, is an underenforced legal norm. The duty is valid as a legal norm to the fullest extent, even though courts engage only in partial enforcement of that norm. This article is the first to bring the idea of underenforced legal norms into private law, drawing on the extensive literature on underenforced legal norms in constitutional law, and on analogous ideas in corporate law. The article explores the reasons why legislatures and courts might want to announce a duty whose scope extends beyond what the courts enforce. In private law, as elsewhere, the underenforcement idea allows courts to lend their expressive support to the broader norm while avoiding the negative side effects that attempted full enforcement would entail.

Item Type: Article
Official URL: http://www.minnesotalawreview.org/
Additional Information: © 2015 Paul MacMahon
Divisions: Law
Subjects: K Law > K Law (General)
Sets: Departments > Law
Date Deposited: 25 Sep 2014 08:54
Last Modified: 20 Sep 2019 01:57
URI: http://eprints.lse.ac.uk/id/eprint/59532

Actions (login required)

View Item View Item

Downloads

Downloads per month over past year

View more statistics