By: Harold Dubroff
In this article, Harold Dubroff, Professor of Law at Albany Law
School, discusses the development of contract interpretation while
focusing on the development of the implied covenant of good faith
in contract performance. He recognizes the wide-usage of the
covenant of good faith in the Twentieth Century since its
development in the Nineteenth and its incorporation into the
Uniform Commercial Code. However, while quoting Judge Posner,
Dubroff emphasizes that cases dealing with this covenant are
“emphatic about its existence” but “cryptic” as to its
meaning.
Dubroff argues that both parties and courts frequently resort to
the implied covenant of good faith while ignoring one fundamental
question: “how the meaning of the agreement ought to be
determined based on principles of interpretation and
gap-filling.” He describes this over-reliance on good faith
as an impediment to clear analysis when used as a basis for
resolving contract interpretation and gap-filling. He
questions “whether good faith should be required as a general
matter without regard to questions of interpretation.”
Ultimately, Dubroff is concerned with the overly-broad use of the
covenant of good faith in place of in interpretation and
gap-filling, not with the covenant itself.