미국 계약법상 Good Faith 원칙

Abstract

In U.S.A., the duty of good faith and fair dealing is recognized as one of the

major principles in Contract Law. But there are intense controversies about the

precise meaning and the scope of the applicability of the principle. This article

intends to introduce the duty of Good faith and fair dealing to Korean readers.

There were early common law cases recognizing the duty of good faith, such

as Wood v. Lucy, Lady Duff-Gordon(222 N. Y. 88, 118 N. E. 214, 1917) and

Kirke La Shelle Co. v. Paul Armstrong Co. (263 N. Y. 79, 188 N. E. 163,

1933). But it was in 1952 that the principle was generally accepted when the

UCC, drafted by Karl Llewellyn, incorporated the principle. Originally UCC

adopted the subjective standard of honesty in fact for the good faith in the

general provisions of Article 1 and only in case of the merchants adopted the

objective standard of the observance of reasonable commercial standards of fair

dealing in the trade as well as honesty in fact in Article 2 regarding Sales. But

because of this failure of adopting the objective standard in the general

provisions, UCC underwent continuing attacks since then. As a result, the revised

UCC article 1-201 of 2001 adopted the objective standard as well as subjective

standard. And §205 of the Second Restatement of Contracts(1981) also

prescribes the general duty of good faith and fair dealing on every contract.

There are much debates about the meaning of the good faith. Professor

Summers asserted in 1968 that the notion of good faith be an excluder, meaning

that it does not have a general meaning of its own but excludes various forms...