2. Relationship investments and ex ante efficiency.- As noted above, the traditional justification for the application of bargaining obligations in preliminary agreements is to protect and promote relational investments or dependencies that would increase the expected surplus of agreements. [90] Often, the investments envisaged by the courts, scientists and lawyers are the costs of negotiating and negotiating contracts on the terms of the agreement, the implementation of dual diligence and the retention of experts who advise on performance (lenders, consultants, architects, etc.). [91] The classic concern of contract theory is that when the price is negotiated or renegotiated after one party has made such a confidence investment, the other party may file a queue to deprive the investing party of the expected return on its investment. Pending such a traffic jam, the investing party would refuse to make even a positive investment. If the terms of the agreement have not been set, this risk of maintenance may be unverified, so the parties may wish the courts to enforce a good faith agreement to negotiate. Although negotiations may fail because one party is leaving, they more often fail because of the unreasonable insistence of one party (from the other party`s point of view) on or by rejecting the proposed terms. This party`s insistence or refusal could be motivated by the objective of getting a much better deal or simply avoiding an unprofitable transaction. Since the duty to bargain in good faith is based on the mutual intent of the parties, the question of whether that party`s conduct is justified is based on the expectations of the parties at the time of the interim agreement.

[34] In particular, the courts refuse to impose good faith obligations in the absence of a framework or conditions agreed in the interim agreement. [35] They use regulated conditions as a reference to determine whether proposals or rejections of proposals are made in good faith. Insisting on conditions that vary or do not meet the conditions set out in the interim agreement can be bad faith. [36] It is particularly likely on the evidence that such an insistence is a pretext to terminate the agreement because of dissatisfaction with the regulated conditions. However, as explained below, it is not desirable for the obligation to be sufficiently invasive to prevent any deviation from the regulated conditions in all circumstances. [37] Cases like this highlight the purpose of good faith promises that go beyond the protection of reliance investments.

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