The Legal Principle of Honourable Dealing - An Implied Term? A Comparative Historical Study of Kuwaiti Civil Code and English Law

Abstract

A duty to perform one’s legal obligations in an honourable way should be a legal norm. Without a moral core, the law loses its validity. Kuwaiti Civil Law, with its French and Islamic roots, readily accepts this premise, both explicitly and implicitly. English law, however, has a long-standing antipathy to any requirement of moral obligations and good faith in parties’ dealings, supposedly due to the need for contractual autonomy and commercial certainty. This paper explores this position and contends that, historically, the use of a ‘gentleman’s agreement’ meant that contracts were less formal, with no need to interpret an implied term of honourable dealing. However, this is changing, especially in relational contracts, meaning that English law and Kuwaiti Civil Law are now drawing closer. The explosion of electronic contracts, however, is a challenge for the concept of honourable dealing, in both countries.