header-logo header-logo

Braganza: in good faith?

13 June 2025 / Abdulali Jiwaji
Issue: 8120 / Categories: Features , Profession , Contract , Dispute resolution
printer mail-detail
222340
Abdulali Jiwaji considers the courts’ application of the Braganza duty in relation to discretionary decisions
  • The courts are increasingly recognising duties of good faith, especially in ‘relational’ contracts and where discretion is exercised.
  • The Braganza duty requires discretionary decisions under contracts to be rational, honest and not arbitrary, and may be relevant across a number of sectors, including banking and insurance.
  • Clear and prescriptive contract terms will help to reduce the scope for disputes, and leave less room for implied good faith or discretion-based duties.

For English law contracts, the concept of a duty of good faith has traditionally not been as relevant as in civil law jurisdictions. In recent years though, the courts have displayed more willingness to give recognition to such duties.

The types of contracts to which a duty of good faith applies is limited, but interestingly, we have seen the introduction of public law standards in respect of contractual decision-making, following the Supreme Court decision in Braganza v BP Shipping Ltd [2015]

If you are not a subscriber, subscribe now to read this content
If you are already a subscriber sign in
...or Register for two weeks' free access to subscriber content

MOVERS & SHAKERS

Birketts—trainee cohort

Birketts—trainee cohort

Firm welcomes new cohort of 29 trainee solicitors for 2025

Keoghs—four appointments

Keoghs—four appointments

Four partner hires expand legal expertise in Scotland and Northern Ireland

Brabners—Ben Lamb

Brabners—Ben Lamb

Real estate team in Yorkshire welcomes new partner

NEWS
Robert Taylor of 360 Law Services warns in this week's NLJ that adoption of artificial intelligence (AI) risks entrenching disadvantage for SME law firms, unless tools are tailored to their needs
The Court of Protection has ruled in Macpherson v Sunderland City Council that capacity must be presumed unless clearly rebutted. In this week's NLJ, Sam Karim KC and Sophie Hurst of Kings Chambers dissect the judgment and set out practical guidance for advisers faced with issues relating to retrospective capacity and/or assessments without an examination
Delays and dysfunction continue to mount in the county court, as revealed in a scathing Justice Committee report and under discussion this week by NLJ columnist Professor Dominic Regan of City Law School. Bulk claims—especially from private parking firms—are overwhelming the system, with 8,000 cases filed weekly
Charles Pigott of Mills & Reeve charts the turbulent progress of the Employment Rights Bill through the House of Lords, in this week's NLJ
From oligarchs to cosmetic clinics, strategic lawsuits against public participation (SLAPPs) target journalists, activists and ordinary citizens with intimidating legal tactics. Writing in NLJ this week, Sadie Whittam of Lancaster University explores the weaponisation of litigation to silence critics
back-to-top-scroll