Good Faith Performance in Employment Contracts: A "Comparative Conversation" between the US and England


This paper asks two questions connected by the fact that they both stem from the inherent incompleteness of employment contracts: in American law, how can the terms in employment handbooks be variable, but sometimes only within reasonable procedurally fair circumstances; and in English law, why doesn’t the implied term of mutual trust and confidence in employment contracts fall foul of the strict test for implication of terms into contract? This paper finds the answer to both questions in the doctrine of good faith. An analysis of good faith as a “comparative conversation” between academic and judicial debates in the US and England against the backdrop of the tension recognized by Atiyah and Summers between the rule application and hortatory roles of the law in a common law system leads to the conclusion that the doctrine of good faith acts to legitimate reasonable expectations of contracting parties. This conclusion is linked back to Karl Llewellyn’s vision of the common law as “situation sense.” It also forms the heart of the argument for common law reform of both English and US employment law to recognize explicitly the coherence creating function of good faith, and is used to defend a rule of good faith variation against being subsumed by the at-will presumption.


Comparative and Foreign Law | Contracts | Judges | Jurisprudence | Labor and Employment Law | Law | Legal Writing and Research

Date of this Version

December 2005