As in Canada, the general position in England is that there is no duty of good faith in the negotiation of contracts: see Martel Building Ltd v Canada, 2000 SCC 60, and Cobbe v Yeoman’s Row Management Ltd, [2006] EWCA Civ 1139.

But, as the English Technology and Construction Court reminds us in Jacobs UK Ltd v Skidmore Owings & Merrill LLP, [2012] EWHC 3293, a duty of good faith may arise in the performance of a concluded contract – and without there having to be express or even implied terms to that effect. In Jacobs UK, one party was obliged to consider awarding contracts to the other, and the other to consider accepting such awards. This necessarily required acting in good faith as a matter of ‘mutual commercial conduct’ rather than under any express or implied term to that effect.

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