Thèse.-- Geneva. / Includes bibliographical references (p. [287]-296).

Thesis (LL. M.)--University of Canterbury, 2009. / Typescript (photocopy). Includes bibliographical references (leaves 350-404). Also available via the World Wide Web.

This thesis is study of the principle of good faith in contract law. In the last fifteen years enormous attempts have been made by contract lawyers, especially those in common law systems, to consider the question of good faith in contracts. But the approach that has been taken by those lawyers in dealing with this important question is unsatisfactory and incapable of producing a coherent understanding of the role of good faith in contracts. Instead of considering the essential question of good faith in contracts, especially commercial contracts, the debate has turned out into a battle between common law and civil law. This approach creates a polarized debate. This study will concentrate on the applications of good faith in arm 's length contractual relationships. This will no doubt concentrate the analysis on its operation in contracts generally, without involving other theories that may explain the courts' concern over the problems of bad faith conducts. Examining good faith as a general requirement in contracts is vitally important in order to reach a coherent understanding of its implications for contracting parties. This study will examine in depth the most important issues regarding the operation of the good faith principle in contract law. I will examine the rationality of this principle in pre-contractual negotiations. This area of contract raises difficult questions in many common law legal systems. The Introduction of the principle of good faith at the stage of negotiation under the PECL and the UNIDROIT Principles has strengthened the role of that principle at the formation of contracts. The interaction between the principle of good faith and express terms in contracts will also be examined in an attempt to identify the limits of the parties' freedom in the enforcement of contract terms. In addition to dealing with the operation of the principle of good faith throughout the life of the contract, it is also vitally important to analyse the general provisions of good faith in the PECL, CISG, UCC and the UNIDROIT Principles. Examining these general provisions of good faith will help us to understand its role in commercial contracts.

Thesis (doctoral)--Ruprecht-Karl-Universität zu Heidelberg.

Thesis (doctoral)--Universität Hamburg.

Thesis (LLM)--University of Stellenbosch, 2005. / ENGLISH ABSTRACT: It is clear that the classical concept of contract suffers from weaknesses because it takes too little account of social and economic changes that have occurred in our highly competitive global climate. More particularly, it fails to acknowledge implicit dimensions of contract. The classical contract theory was designed for transactions rather than to regulate relations. In view of the relational contract theory, contracts are agreements, often developed gradually, over a period of time and last over a period of time, perhaps indefinitely. As illustrated, with a discussion of the various theories attempting to qualify the classical law, the development of the relational contract theory and the need for implicit dimensions is in line with changes in business, market transactions and the economic and social environment of today. The relational contract is gradual and emphasises the relationship between the parties. Focus is placed on their understandings, party practices, customs and expectations as opposed to formal doctrines and principles. Characteristically, relational contracts are often incomplete in their specifications, thus leaving room for the creation of expectations and understandings inter partes. These expectations and understandings along with co-operation, rationality and trust are the implicit dimensions, which reflect the shared interest the parties have in their transaction. The ways in which these implicit dimensions can be recognised, developed and applied to contracts, particularly in the South African context is considered in light of our law's treatment of the implication of terms into contracts. It was found that considerations of reasonable expectations and policy do playa role in our law, albeit not to such an extent as to meet the demands of the relational contract theory and the recognition of implicit dimensions. Existing contract principles are also evaluated in the light of the relational contract and implicit dimensions. It is not suggested that classical contract law doctrines are to be dispensed with but that a shift of focus should occur, from the traditional focus on the ''paper'' deal to focusing on the ''real'' deal, between the parties. It is concluded that a principle of good faith would be a suitable starting point to give cognisance to implicit dimensions and to regulate relational contracts. In recognising a principle of good faith, the courts will be able to better respond to the expectations of the parties. A principle of good faith is recommended as being advantageous towards developing a pre-contractual duty of disclosure and encouraging more co-operative thinking and dealing in both legal doctrine and contracting practice. / AFRIKAANSE OPSOMMING: Dit is vandag duidelik dat die klassieke kontraksmodel aan swakhede ly omrede dié model nie genoegsaam rekening hou met sosiale en ekonomiese veranderinge mons hoogskompeterende wêreldklimaat nie. Meer bepaald, neem die model nie die implisiete aspekte van kontrakte in ag nie. Die klassieke teorie is meer gepas vir eenmalige transakies tussen kontraktante en nie soseer gebruik vir die regulering van deurlopende kontraksverhoudinge nie. In terme van die verhoudingskontrakteorie ("relational contract theory") word kontrakte beskou as ooreenkomstes wat geleidelik, oor 'n lang tydperk kan duur, miskien selfs vir 'n onbepaalde tydperk. Soos gei1lustreer, is daar verskeie teoriëe wat poog om die bestaande klassieke benadering aan te pas. Die ontwikkeling van die verhoudingskontrakteorie en die implisiete aspekte van kontrakte korreleer met veranderinge in internasionale handel en die ekonomiese en sosiale omgewing van vandag. Die verhoudingskontrakteorie beklemtoon die verhouding tussen die partye, hul praktyke en gewoontes en verwagtinge en is nie net slegs op formele beginsels gebaseer nie. 'n Eienskap van hierdie kontraktstipe is dat hulle dikwels nie poog om die verhouding van die partye volledig te reguleer nie. Sodoende word ruimte gelaat vir die ontwikkeling van verwagtinge en implisiete verwagtinge tussen die partye. Hierdie verwagtinge en verstandhoudings te same met die beginsels van samewerking, redelikheid en onderlinge vertroue, is die implisiete aspekte wat die gemeenskaplike belang wat partye in hul verhouding het, weerspieël. Maniere om hierdie implisiete aspekte te herken, te ontwikkel en toe te pas, veral in die Suid- Afrikaanse konteks, is oorweeg in die lig van ons reg se benadering tot die inlees van onuitgesproke bedinge in kontrakte. Alhoewel daar bevind is dat redelike verwagtinge en beleid wel 'n rol speel, is dit onvoldoende in die lig van die eise van die verhoudingskontrakteorie en die behoefte aan implisiete aspekte. Bestaande kontraksbeginsels is ook geëvalueer in die lig van die verhoudingsgebaseerde kontrak en implisiete aspekte. Daar word nie gesuggereer dat klassieke beginsels van die hand gewys moet word nie. Eerder dan die tradisionele fokus op die "paper deal" moet die fokus op die"real deal" wees. Ten slotte word die behoefte aan die erkenning van 'n beginsel van goeie trou uitgelig. Breedweg sal howe beter kan reaggeer op partye se verwagtinge en verstandhoudinge en dié beginsel word ook aanbeveel met die oog op die behoefte aan samwerking tussen partye en die ontwikkeling van 'n voor-openbaarmakingsplig.

New Zealand presently operates a "free market" system of employment and labour relations in which there are no prescribed or mandatory bargaining procedures. When this system was introduced by the Employment Contracts Act 1991 (the "ECA" ) it represented a dramatic departure from the previous system of state regulated collective bargaining, conciliation and arbitration: a system that had existed in New Zealand for almost a century. Although this change in approach was supported by free market advocates, it also generated considerable international and domestic criticism. In response to that criticism, a number of New Zealand politicians stated in 1996 that they would consider imposing on employers and employees a statutory duty to bargain in good faith. However, since the end of 1996, very little has occurred in respect of this issue. Indeed, it now appears that the current New Zealand Government may have abandoned this proposal altogether. If this is, in fact, the Government's decision, it ought to be viewed with concern, for it has been made without the benefit of informed debate. Little, if any, substantive consideration has been given to whether such a duty ought to be introduced, and if so, the form it might take and impact it might have. If an informed decision is to be made to enact a duty of this nature, or not, as the case may be, its merits must be the subject of further debate. This thesis will endeavour to contribute to that debate by examining how one approach to the duty to bargain in good faith, that which applies in British Columbia, Canada, might operate in New Zealand. This examination will consist of six chapters. The first will contextualise the New Zealand arguments on whether a duty of this nature ought to be introduced into the ECA. Chapter two will then examine the duty to bargain in good faith as it applies in British Columbia industrial relations. Chapter three will take that duty, and examine the extent to which it is currently replicated in New Zealand. It will be concluded that little of the substance of this duty is to be found in the law which presently governs the New Zealand labour market. Chapter four will assess the costs of introducing a duty of this nature into the ECA, particularly in terms of reduced efficiency and freedom. Chapter five will identify a number of specific issues that will require resolution if the duty is to operate effectively in New Zealand, and the terms of a suggested statutory amendment will be proffered. It will be concluded in chapter six that introducing a duty to bargain in good faith, akin to that which applies in British Columbia, would benefit New Zealand employers, employees and society as a whole. Further, it will be argued that such a duty must be introduced if labour bargaining in New Zealand is to occur in any meaningful way for most employees. And finally, it will be suggested that if this duty is to be introduced effectively, legislative amendment will be required. For these reasons, it will be asserted that the New Zealand Government ought to revisit the issue of introducing into the ECA a statutory duty to bargain in good faith.

Thesis (doctoral)--Universität Breslau, 1913. / Includes bibliographical references (p. [6]-7).

New Zealand presently operates a "free market" system of employment and labour relations in which there are no prescribed or mandatory bargaining procedures. When this system was introduced by the Employment Contracts Act 1991 (the "ECA" ) it represented a dramatic departure from the previous system of state regulated collective bargaining, conciliation and arbitration: a system that had existed in New Zealand for almost a century. Although this change in approach was supported by free market advocates, it also generated considerable international and domestic criticism. In response to that criticism, a number of New Zealand politicians stated in 1996 that they would consider imposing on employers and employees a statutory duty to bargain in good faith. However, since the end of 1996, very little has occurred in respect of this issue. Indeed, it now appears that the current New Zealand Government may have abandoned this proposal altogether. If this is, in fact, the Government's decision, it ought to be viewed with concern, for it has been made without the benefit of informed debate. Little, if any, substantive consideration has been given to whether such a duty ought to be introduced, and if so, the form it might take and impact it might have. If an informed decision is to be made to enact a duty of this nature, or not, as the case may be, its merits must be the subject of further debate. This thesis will endeavour to contribute to that debate by examining how one approach to the duty to bargain in good faith, that which applies in British Columbia, Canada, might operate in New Zealand. This examination will consist of six chapters. The first will contextualise the New Zealand arguments on whether a duty of this nature ought to be introduced into the ECA. Chapter two will then examine the duty to bargain in good faith as it applies in British Columbia industrial relations. Chapter three will take that duty, and examine the extent to which it is currently replicated in New Zealand. It will be concluded that little of the substance of this duty is to be found in the law which presently governs the New Zealand labour market. Chapter four will assess the costs of introducing a duty of this nature into the ECA, particularly in terms of reduced efficiency and freedom. Chapter five will identify a number of specific issues that will require resolution if the duty is to operate effectively in New Zealand, and the terms of a suggested statutory amendment will be proffered. It will be concluded in chapter six that introducing a duty to bargain in good faith, akin to that which applies in British Columbia, would benefit New Zealand employers, employees and society as a whole. Further, it will be argued that such a duty must be introduced if labour bargaining in New Zealand is to occur in any meaningful way for most employees. And finally, it will be suggested that if this duty is to be introduced effectively, legislative amendment will be required. For these reasons, it will be asserted that the New Zealand Government ought to revisit the issue of introducing into the ECA a statutory duty to bargain in good faith. / Law, Peter A. Allard School of / Graduate

Univ., Diss.--Hamburg, 2005. / Literaturverz. S. 227 - 232.