美國 契約法上 Good Faith 原則

Abstract

In U.S.A., the duty of good faith and fair dealing is recognized as one of the major principles in Contract Law. But there are intense controversies about the precise meaning and the scope of the applicability of the principle. This article intends to introduce the duty of Good faith and fair dealing to Korean readers. There were early common law cases recognizing the duty of good faith, such as Wood v. Lucy, Lady Duff-Gordon(222 N. Y. 88, 118 N. E. 214, 1917) and Kirke La Shelle Co. v. Paul Armstrong Co. (263 N. Y. 79, 188 N. E. 163, 1933). But it was in 1952 that the principle was generally accepted when the UCC, drafted by Karl Llewellyn, incorporated the principle. Originally UCC adopted the subjective standard of honesty in fact for the good faith in the general provisions of Article 1 and only in case of the merchants adopted the objective standard of the observance of reasonable commercial standards of fair dealing in the trade as well as honesty in fact in Article 2 regarding Sales. But because of this failure of adopting the objective standard in the general provisions, UCC underwent continuing attacks since then. As a result, the revised UCC article 1-201 of 2001 adopted the objective standard as well as subjective standard. And §205 of the Second Restatement of Contracts(1981) also prescribes the general duty of good faith and fair dealing on every contract. There are much debates about the meaning of the good faith. Professor Summers asserted in 1968 that the notion of good faith be an excluder, meaning that it does not have a general meaning of its own but excludes various forms of bad faith. This assertion exercised some influence on the official comment of §205 of the Second Restatement of Contracts. By Contrast, professor Burton understands the duty of good faith as protecting the reasonable expectations of the contract parties at the time of the contract formation by prohibiting the recapturing of the forgone opportunities. And professor Anderson elaborated the theory of good faith enforcement. There are many cases dealing with good faith. But the courts do not always take the same positions. Some Courts, like judge Easterbrook in Kham & Nate's Shoes No. 2, Inc. v. First Bank of Whiting(908 F. 2d 1351 ff. 1990), have taken the view that the duty of good faith cannot be applied in the face of express provisions of the contract. But other courts have expressed more nonformalistic understanding of good faith, trying to protect the reasonable expectations of the parties. The duty of good faith is not recognized generally at the formation stage of the contract. Nonetheless, the courts have protected the party of the frustrated negotiation by way of restitution, tort of misrepresentation and promissory estoppel. And if there is preliminary agreement on the formation of contract, the protection of the party can be achieved by the interpretation of this preliminary agreement. In the author's opinion, these controversies can be useful in understanding the Korean doctrine of good faith.