Controlled Access. Restriction lift date: 2028-09-30
Does the Irish common law of contract currently or potentially possess the tools necessary to achieve PECL’s good faith requirements?
Loading...
Files
Date
2022
Authors
Walsh, Raymond
Journal Title
Journal ISSN
Volume Title
Publisher
University College Cork
Published Version
Abstract
There has been considerable interest at the highest levels of the EU in the establishment of a common European law of contract. Groundwork has been laid in furtherance of this objective, although it is unknown when, or even if, a common European law of contract will be achieved. Hope has been expressed that the EU member states will be guided by this groundwork in the development of their national laws of contract. This thesis demonstrates that the Irish law of contract will not be influenced to develop its doctrine of good faith substantially in the direction suggested. The groundwork is varied in source and content and contains no consensus as to the ideal duty of good faith. While it is acknowledged that the use of any of these sources is necessarily arbitrary in these circumstances, the good faith obligation set out in the Principles of European Contract Law can provide valuable guidance. In the Comment to Principles of European Contract Law, Hugh Beale briefly considered whether the common law possessed the tools necessary to achieve the good faith outcomes required by PECL. The analysis demonstrated that the tools available to the English judiciary at the time of the Comment’s publication were inadequate to PECL’s good faith requirements.
This work will undertake a similar, but substantially broader, analysis: it will consider not only those tools which are currently available to the Irish judiciary but also those tools which are potentially available.
Three questions are asked and answered. The first question is: what tools are potentially available to the Irish judiciary to substantially expand the principle of good faith in the direction required by PECL? The thesis will demonstrate that the reasonable expectations good faith model and an Australian-style doctrine of estoppel are the only tools which are realistically available. The second question is: can these tools, in combination with the tools which are currently available to the Irish judiciary (the so-called ‘piecemeal solutions’), achieve PECL’s good faith objectives? The thesis will demonstrate that these tools would be insufficient to achieve PECL’s requirements. The third question is: why are the tools incapable of achieving PECL’s objectives? The thesis will demonstrate that the answer lies in the common law’s commitment to the individualistic ideal. The thesis demonstrates that nothing short of national or EU legislation will work to introduce a duty of good faith of PECL’s scope into Irish law, as Ireland’s common law system is ideologically resistant to such a development.
Description
Keywords
European law of contract , PECL , Australian-style doctrine of estoppel , Piecemeal solutions , Good faith requirements
Citation
Walsh, R. 2022. Does the Irish common law of contract currently or potentially possess the tools necessary to achieve PECL’s good faith requirements?. PhD Thesis, University College Cork.