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The Implied Covenant of Good Faith and Fair Dealing under U.S. Law
It is a truth universally acknowledged that even the most well-written agreement never covers all potential issues that may arise in the future, and that when the rubber hits the road, the parties to the agreement never interpret its terms the same way. Agreement terms that seemed clear and sufficient to the parties at a time when they were both excited about entering into business with each other look significantly different after some major change or shift in circumstances. When circumstances change, the parties often find that the agreement does not cover the exact situation they are now facing. Instead, depending on how their contract is interpreted, one of the parties may be able to take advantage of the contractual silence or ambiguity and act in a way that causes detriment to the other.
How to handle the silent or ambiguous contract is a universal dilemma. Each legal system approaches the issue somewhat differently, but generally there are two approaches. One is to simply disregard the issue and stick to the express terms of the agreement. With this approach, the parties only have to follow the express agreement and are otherwise free to act as they wish, independent of the consequences of their action to the other party. If their agreement did not document or foresee a situation, they are each free to act in a way they believe is in their own best interest (provided, however, that statutory law may provide gap-filler provisions).
The other approach is to recognize that even though parties may have failed to expressly address everything in the agreement, they still have some type of obligations towards each other to act fairly. We refer to this obligation as the “implied covenant of good faith and fair dealing” (hereinafter referred to as the “good faith covenant”). We'll call the first approach the “cowboy approach” and the second one the “cuddled approach.” Not to hold you in suspense: the U.S. has adopted a kind of cuddled cowboy approach ' while we recognize the good faith covenant, it does not go so far as to fill in reasonable terms where the parties themselves failed to do so.
Major Differences In UK, U.S. Copyright Laws
This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.
Strategy vs. Tactics: Two Sides of a Difficult Coin
With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.
The Article 8 Opt In
The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.
Removing Restrictive Covenants In New York
In Rockwell v. Despart, the New York Supreme Court, Third Department, recently revisited a recurring question: When may a landowner seek judicial removal of a covenant restricting use of her land?