I often find Christmas a rather strange time of year.
The airwaves are full of songs about peace on earth and good will to all men and the benefits of a silent night. I can’t move for people singing at me about how from now on, all my troubles will be out of sight, although the number of children apparently concerned about mummy kissing Santa Clause suggests that my colleagues in our family law department will have a busy new year. Nevertheless, most right minded people (women and men!) would say that we should be being nice to each other and behaving nicely all year round!
Having said that, it’s not a bad time to remember the importance of being nice. Especially as we then head towards new year, which is often a time when people think about making resolutions. For some, that might just mean going to the gym more, or drinking less (????) but for others, it’s turning over a new leaf and committing to shouting less at the children (as if my children would take any notice of me if I did!)
However, those who regularly engage in contractual relations, may not know that their obligation to be nice is actually already implied, whether the contract requires it or not.
Historically the UK was one of the few countries that didn’t imply “good faith” obligations into contracts. In other words, unless your contract expressly stated that you be nice to each other and act fairly, you could do whatever you liked, so long as it didn’t expressly breach the contract. In more recent years, UK courts have been more willing to imply an obligation on the parties to behave honourably in certain situations. So, just because you are doing something that is not expressly excluded by the contract, doesn’t mean that a court might not still say that you are in breach and sanction you accordingly.
You may say that this is contrary to my usual mantra – what’s the point in having a contract if courts can still add provisions that the parties haven’t agreed to. You are not wrong, but it is still better to have as much certainty as possible, so a contract is still a good thing to have. What’s more, a court’s ability and willingness to imply terms is still fairly limited and if it is the other side that are being naughty, then a court’s ability to send them to bed without any supper will be still be something you’ll appreciate.
So there are benefits to having a contract and behaving nicely, and not just because it increases the chances of being on Santa’s nice list come December 2023.
Kleyman & Co Solicitors. Good advice all year round.