‘A comparative analysis of the unending good faith dilemma in contract under the prism of the constitution’

Abstract

“The doctrine of good faith is the legal equivalent of a chameleon – it takes on the characteristics of its environment “1 The interplay between good faith and the law of contract is not something of the new, same is as old as the law of contract itself 2with Scalia J holding it to be “a rechristening of the fundamental principles of contract law well established “3. The concept of good faith in the law of contract has generated much debate amongst both academic writers, practitioners of law and judicial officers both in common law jurisdictions which are hostile to its reception 4 and civil Law jurisdictions which are quite receptive to it resulting in several articles and judgments of court being published/ handed down in that area. Irrespective of the several writings and judicial pronouncements on it, it remains a dodgy and contentious area regarding its definition,5 structure, theoretical foundations, role, and influence in the law of contract at large. This article does not, in anywhere claim to bring a panacea to the problems be delving good faith but seeks to add to the ongoing debate currently on good faith and its role in the law of contract running from the inception, performance and termination of contract. Jurisprudential reflections on good faith as a principle not a rule of contract also invites interrogation of particular importance is to inquire on what good faith as a principle of contract entails both in the subjective and objective sense and how it can be positively utilized in the law of contract not just as a defence to claims but also as a good cause of action in the event of breach of contract. Noting that good faith as a principle of contract is too broad, the paper will deal more on objective good faith after noting the inherent weaknesses of employing subjective good faith and inherent dangers it poses to judicial functionaries like the judges. The interplay between good faith and public policy or contracts that cannot be enforced by our courts on ground of unconscionability will also be interrogated. The paper will also critique the current position in Zimbabwe and South Africa comparing it with the position adopted in other jurisdictions. The effect of the constitution on the judicial position in relation to principle of good faith will be examined and interrogated in this paper with a view to find out how both our policy makers and the courts can come out of the dilemma or legal quagmire. The claim advanced by this paper is that good faith must either be promoted from a principle of contract law to a rule of contract law. This can only be achieved through reform and how that reform is achievable is again a contentious area given that reforms can come through two ways, that is, either through judicial activism now sanctioned by the constitution or through legislative reforms. Courts in Zimbabwe have been so sceptical of crossing the red line separating its functions from that of the legislature leaning rather on the parameters set by the separation of powers principle. Simply put, courts are generally unwilling to mingle in matters perceived to fall into the purview of the law maker. The paper will end with recommendations for reforming the law on good faith as a principle of contract law which could come in two ways either through judiciary activism encouraged in terms of section 46(1) of the constitution or through legislative intervention .In Zimbabwe courts have been slow or unwilling to unsettle the legislative role to enact laws by coming up with decisions which promote the development of common law preferring to leave this function to parliament in line with the principle of separation of powers unlike in South Africa where courts have used the relevant similar section effectively to develop the common law .The paper will also critique the current position in Zimbabwe and South Africa comparing it with the position adopted in other jurisdictions. The new constitutional dispensation in these two jurisdictions cannot avoid scrutiny, especially their effect on the law of contract. South Africa is chosen as country of comparative analysis simply on the basis that it shares the same common law with Zimbabwe with legal- historical connections and similar constitutional provisions in the areas of interest. The United States and United Kingdom are also chosen on the basis that there have been some developments in application of the principle of good faith across all states and move from a strict positivist approach to good faith to embracing the naturalist philosophers’ school of thought of good faith in the law of contract. Some recommendations for reform be it through judicial process or legislation will be touched on. The paper therefore seeks to contribute to the development of the law of contract in Zimbabwe which is in sync with developments in another jurisdiction.