That’s not cricket

You may be aware of the cricketing controversy that has hit the sporting headlines over the weekend in the Ashes series. For the purposes of this article, we’ll ignore the current score…

England batsman, Jonny Bairstow, was dismissed after leaving the crease and the Australian wicketkeeper threw the ball at the stumps knocking the bails off. The umpire had not called ‘over’ so technically – i.e., within the ‘letter’ of the rules, he was correctly called out. The controversy arose as it was alleged that the wicketkeeper had failed to act in the ‘spirit’ of the game.

There are some parallels to a party to a contract being accused of failing to act in ‘good faith’ or in the ‘spirit of the agreement’. While a contract may require the parties to act ‘in good faith’ and ‘in the spirit of the agreement’ it is rare that commercial contracts expressly define what this means. A party may say that it has acted in accordance with the contractual terms, but the other party may allege that in doing so, it has not acted in ‘good faith’ or in the ‘spirit of the agreement’.

As it stands, the approach adopted by the courts is that the meaning of acting ‘in good faith’ and ‘in the spirit of the agreement’ will be taken from the express terms of the contract. They will not impose additional obligations on the parties because, absent a definition of those obligations, there is no benchmark against which a court could enforce those obligations. Generally, this means that the court will interpret their meaning by reference to the parties’ mutual aims when entering into the contract.

If you have any questions about your contractual obligations or your contractual position in general (and don’t want to talk cricket) please contact Daniel Adcock-Kirsh, Senior Associate in the Litigation Department at Kuits.