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Category: Comparative law

The implied term of good faith in English contract law: a view from North of the border

The implied term of good faith in English contract law: a view from North of the border

Published 13th February 2023

by Prof Laura Macgregor, Chair of Scots Law, Edinburgh Law School*

At the time of writing, the Scottish courts have not yet had the opportunity fully to consider the English implied term of contractual good faith (in Unicorn Tower Ltd v HSBC Bank plc [2018] CSOH 30 [72], Lady Wolffe held that there was no need to adjudicate on the parties’ submissions on this question). This is not surprising: the flow of Scottish reported cases is relatively small, and (Unicorn aside) no case has been reported in which a Scottish court has been asked to apply the relevant English precedents.

Whether a Scottish court would be obliged to apply those English precedents in the context of a suitable case is a difficult question. The law of implied terms in English and Scots contract law is similar, and English precedents are routinely cited and applied in the Scottish courts. That is not the case, however, with contractual good faith. Scots law contains a native, albeit nascent and under-developed, idea of contractual good faith. In a House of Lords case from 2004 Lord Hope stated: “Good faith in Scottish contract law […] is generally an underlying principle of an explanatory and legitimating rather than an active or creative nature” (R v Immigration Officer at Prague Airport, ex parte European Roma Rights Centre [2004] UKHL 55, [2005] 2 AC 1, [60]). More recently, the Inner House of the Court of Session reasserted the existence of good faith without expanding on its source or nature (Van Oord UK Ltd v Dragados UK Ltd [2021] CSIH 50).

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Continuity, Influences and Integration in Scottish Legal History: Select Essays of David Sellar, edited by Hector L MacQueen (Edinburgh Studies in Law, Edinburgh University Press, 2022)

Continuity, Influences and Integration in Scottish Legal History: Select Essays of David Sellar, edited by Hector L MacQueen (Edinburgh Studies in Law, Edinburgh University Press, 2022)

Published 9th March 2022

By Hector MacQueen, Emeritus Professor of Private Law, University of Edinburgh

David Sellar (1941-2019) was a pioneering historian of Scots law who convincingly and conclusively rejected previous interpretations of the subject as a series of false starts and rejected experiments. He emphasised instead the continuity of legal development in Scotland, with change a process of integration of external influences with indigenous customs from very early times on. Thus down to the present Scots law embraces Celtic and other customary elements reaching far back into its past, while also having been open to innovation from the developing Canon, Civil, Feudal and English Common law since the middle ages. This too has left deep marks upon the law’s character as a “mixed legal system”.

David’s approach, articulated mainly through essays published in diverse places over four decades, has had significant influence upon general understanding of legal history in Scotland as well as leading to appreciation elsewhere of its comparative significance. Gathering his major essays together in this single collection demonstrates the scope and reach of David’s overall contribution; it is perhaps an approximation to the monograph that he was not spared to write. What distinguishes the contribution from others in the field is the perspective that David himself brought to bear, which was one no other writer in the field could achieve, especially in relation to Celtic and Canon law.

Continue readingContinuity, Influences and Integration in Scottish Legal History: Select Essays of David Sellar, edited by Hector L MacQueen (Edinburgh Studies in Law, Edinburgh University Press, 2022)
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