Good Faith and Relational Contracts: A Scots-Roman Perspective

Abstract

One of the most striking differences between the Civilian jurisdictions and the English common law has been the reluctance of the latter to adopt a general principle of good faith in contract. Scots law, however, often seeks to exercise the functions of good faith but does not recognise it as a general principle. In recent years, English law has begun to identify good faith as an implied term in “relational contracts”, a concept with sociological and economic origins. This article applies that development to Scotland by exploring the relationship between good faith and the relational contract from a Scots-Roman perspective. It will be shown that the historical sources of Scots contract law, from the Roman reception to the Institutional Writers, are fully compatible with relational contracts. It goes on to consider how a Scots law approach to good faith in relational contracts might orientate itself to the English authorities.