Commercial Agency and the Duty to Act in Good Faith

Oxford Journal of Legal Studies, Volume 36, Issue 3, 1 September 2016, Pages 661–695; doi: 10.1093/ojls/gqv040

Posted: 23 Nov 2015 Last revised: 22 Feb 2018

See all articles by Andrea Tosato

Andrea Tosato

University of Nottingham, School of Law; University of Pennsylvania Law School

Date Written: September 15, 2015

Abstract

Under Directive 86/653/EEC on the co-ordination of the laws of the Member States relating to self-employed commercial agents (the ‘Directive’), commercial agents have an obligation to act ‘dutifully and in good faith’ (the ‘Obligation’). This article considers the impact that this general good faith clause has had upon the UK legal order. It first analyses the Obligation, assessing its scope, function and content. It then reviews the choices made by the UK legislature in implementing this duty and scrutinises the manner in which it has been construed and applied by UK courts, as well as commentators. Finally, it charts the areas of the pre-existing body of rules governing principals and agents at common law that are affected by this imported notion and appraises the resulting alterations to the positive law.

Keywords: agency, good faith, commercial agents, EU private law, common law, contract law

JEL Classification: K12

Suggested Citation

Tosato, Andrea, Commercial Agency and the Duty to Act in Good Faith (September 15, 2015). Oxford Journal of Legal Studies, Volume 36, Issue 3, 1 September 2016, Pages 661–695; doi: 10.1093/ojls/gqv040, Available at SSRN: https://ssrn.com/abstract=2694181

Andrea Tosato (Contact Author)

University of Nottingham, School of Law ( email )

Law and Social Science Building
University Park
Nottingham, NG7 1BB
United Kingdom

University of Pennsylvania Law School ( email )

Philadelphia, PA
United States

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