International Construction Law Review

Chantal-Aimée Doerries KC; Professor Douglas Jones AO

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GOOD FAITH IN CONSTRUCTION CONTRACTS UNDER FRENCH LAW AND SOME COMPARATIVE OBSERVATIONS WITH ENGLISH LAW

Peter Rosher

Partner, Avocat à la Cour & Solicitor (England and Wales), Pinsent Masons France LLP

If cash flow is the lifeblood of the construction industry, then good faith is a vital artery. Like any contracts, construction contracts come in all shapes and sizes and serve a diversity of purposes. There are, however, a number of important factors that make construction contracts different, particularly when operating in an international context. These include the length of the project, its complexity, the size and the fact that often the price agreed and the amount of work to be done may change as a project proceeds1. In long-term construction contracts and in – increasingly prevalent – partnering or alliancing type contracting, the need to regulate future cooperative ventures goes to the core of a project’s potential success. A failure by one or more of the parties to comply with certain standards of honest conduct and to cooperate in order to achieve the contractual objectives can hit profit margins long and hard.

The first and primary part of this paper will examine the application of the duty of good faith under French law, the aim being to dispel a stubborn misconception which persists outside the Hexagon. Contrary to popular myth, French law does not embrace a free-floating good faith norm applied by French judges at their liberal discretion in order to cure what he or she considers unfair or unreasonable, even when this goes beyond, or is inconsistent with, the agreed terms of the parties’ contract. This view is fundamentally misconceived with respect to contractual performance. It is more nuanced than some would have it believed with respect to pre-contractual negotiations. The second part of this paper will then outline briefly the current state of the law regarding good faith duties across the Channel, in England and Wales, where an incremental approach has taken and – despite regular tugs – held root. This will lead to some final comparative observations.

Before turning to examine the French and English law positions, it is helpful to bear in mind the following general preliminary remarks:

1 Risks can include factors that affect the progress of the works like unforeseen ground conditions or a change in the premise on which risk was allocated by the parties at contract formation because, for example, of a change in the availability of materials and its cost.

Pt 3] Good Faith in Construction Contracts Under French Law

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