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Good faith

Do you have absolute contractual rights or a contractual discretion with Braganza limits?

Samantha Holland

In Shurbanova v Forex Capital Markets the High Court found that a clause permitting a broker discretion how to act in relation to – what the broker considered was – abusive trading strategies by a client were absolute contractual rights and therefore not subject to a Braganza duty to exercise its discretion rationally. Forex Capital Read More

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Being discrete: when to worry about contractual discretion

Jason Rix

Last week the Royal Swedish Academy of Sciences Nobel Prize for Economics went to Hart and Homstrom for their contribution to contract theory. Hart has considered so-called “incomplete contracts”.  These arise because it is not possible to specify every eventuality. This is where contractual discretion often comes in. We tend to use the term “discretion” quite broadly in Read More

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Good faith in English contract law – a fuss about nothing?

Jason Rix

Some English lawyers seem to distrust the concept of good faith insofar as it relates to the performance of obligations under commercial contracts. If this is the case, the good news is that it is implied infrequently and when it is implied, the requirements tend not to be that onerous. The bad news is that Read More

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