Article by Friedrich K. Juenger
If hostility is too strong a term, reluctance seems a fair description of my American colleagues' reactions to good faith, a key concept of the UNIDROIT Principles of International Commercial Contracts (UNIDROIT Principles). Their reactions surprise me because good faith is not a newcomer to the American scene. As Professor Farnsworth points out, the concept of good faith was smuggled into the Commercial Code by Karl Llewellyn, who had found it in Germany. Having succeeded in putting good faith into the Uniform Commercial Code (U.C.C.), Llewellyn promptly covered up the traces of the concept's Teutonic origin. Untainted by residues of foreign soil, it sprouted roots and grew beyond the U.C.C.'s confines. In his capacity as Reporter for the Restatement (Second) of Contracts, Professor Farnsworth found a larger field of cultivation for this transplant. In language of civilian breadth, Restatement section 205 proclaims: “Every contract imposes upon each party a duty of good faith and fair dealing in its performance and its enforcement.”
About the Author
Friedrich K. Juenger. Barrett Professor of Law, University of California at Davis.
Citation
69 Tul. L. Rev. 1253 (1995)