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Finding Good Faith and Fair Dealing In Entertainment and Sports Relationships
Contractual interpretation can be a thorny business. Yet it pales in comparison to the treacherous waters that surround supposed duties nowhere to be found in the language of a contract — and that may never have been negotiated or discussed by the parties. For many entertainment and sports professionals, the most significant and far-reaching of these implied duties is the duty of good faith and fair dealing that courts read into every contract. As straightforward as the obligation sounds when described in general terms, it can be vexing to determine what particular conduct it may require in specific situations. What's more, the reported decisions construing the obligation tend to be highly fact-dependent, thus providing only limited guidance.
Promoting Parties' Goals
In theory, the covenant of good faith and fair dealing aims to promote the goals of the contracting parties, as opposed to loftier aspirations. “The covenant of good faith is read into contracts in order to protect the express covenants or promises of the contract, not to protect some general public policy interest not directly tied to the contract's purpose.” Foley v. Interactive Data Corp., 47 Cal.3d 654, 690 (1988). But as bland and organic as such descriptions of the doctrine may sound, its application is not always so restrained. Some courts have deployed the covenant to impose affirmative duties that the parties could have negotiated but didn't, on the theory that it “not only imposes upon each contracting party the duty to refrain from doing anything which would render performance of the contract impossible by his own act, but also the duty to do everything that the contract presupposes that he will do to accomplish its purpose.” Harm v. Frasher, 181 Cal.App.2d 405, 417 (1960) (emphasis added). Moreover, adversarial proceedings convened to adjudicate claims of a breached covenant have been known to devolve into sweeping examinations of the reasonableness, fairness or decency of the combatants.
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