Judicial reasoning and a common law duty of contractual good faith
Type of content
Mr Livingstone owned a valuable motor car which Mr Roskilly, a motor car repairer, agreed to repair. The car was stored in Mr Roskilly's premises in an inadequately locked garage and was stolen. A sign on Mr Roskilly's garage wall read: "All vehicles stored and driven at owners [sic] risk. All care taken: No responsibility". Justice Thomas found for Mr Livingstone on traditional principles of contract interpretation but noted, in an obiter statement: "...[an] overriding principle [that is] found in most legal systems outside the common law world to the effect that in making and carrying out contracts, parties should act in good faith... I would not exclude from our common law the concept that, in general, the parties to a contract must act in good faith in making and carrying out the contract." This thesis considers whether or not such a duty ought to form part of our common law of contract. Briefly put, should contracting parties owe each other an implied common law duty of good faith? The equally brief answer to this difficult and engaging question provided in this thesis is that they should not.