Most U.S. jurisdictions consider the breach of the implied duty of good faith and fair trade only as a variant of breach of contract, where the implied agreement is merely a “gap filling” that provides for another contractual clause and its breach merely results in ordinary contractual damages. Of course, this is not the most ideal rule for plaintiffs, as consequential damages due to breach of contract are subject to certain restrictions (see Hadley v. Baxendale). The impact of terms on contracts is a complex issue and depends on the nature of the contract and the circumstances of the case (see Contracts: Express and Implied Clauses). In general, courts are reluctant to include clauses in contracts, and this reluctance also applies to the suggestion of a duty of good faith. It appears that they will only do so if it is necessary to make the contract practically or commercially coherent (Monde Petroleum SA v. Westernzagros Ltd  EWHC 1472). Cases have shown, for example, that one party does not have to consider the other party`s business interests beyond its own and that it is not necessary to inform or remind the other party of its rights under the contract. In particular, express contractual conditions are not superseded by an implied obligation of good faith; the courts firmly believe that the parties are free to enter into contracts at will and that they will not interfere with it unless strictly necessary. All of these things may seem pretty obvious at first glance, but in reality, it can be difficult to determine them. For example, the dividing line between a party acting in a manner that denies the subject matter of a contract and the action may not be clear in its own business interests.
And what about inaction? The courts have held that a party`s failure to act may constitute a breach of a duty of good faith and have held that a duty of good faith requires one party to disclose certain information to the other party. This may come as a surprise to both business owners and lawyers. Yes, the parties may expressly agree in the contract to act in good faith, but it is essential that the wording be clear. While it is clear from the case-law that the wording used for such an obligation may vary and should not follow a specific form, it must nevertheless be clear that the parties intended an obligation of good faith to apply. For one case, the courts found that the parties had not expressly agreed to a duty of good faith if the wording provided that they had to “observe” various “partnership principles” because “considerate” did not go far enough (Fujitsu Services Ltd v. IBM United Kingdom Ltd  EWHC 752). The concept of good faith is inherently subjective and uncertain. There is no proven definition, and as such, the term “faithful faith” may raise more questions than it solves. In the eyes of English law, this is not advantageous for contracting parties who need certainty and clear contractual conditions. Although it is unlikely that an explicit duty of good faith would require a party to consider the other party`s business interests beyond its own or to override other contractual obligations, such an obligation has been established by the courts as follows: The concept of good faith was established in the insurance industry after the events in Carter v. Boehm (1766).
and is enshrined in the Insurance Contracts Act 1984 (ICA).  Section 13 of the Act sets out the obligation of all Contracting Parties to act in good faith […].