“Not Subject to a Reasonableness Standard”

Today I saw another way to make it clear that you want a party to waive the implied duty of good faith:

Shipper, at its sole discretion and not subject to a reasonableness standard, may determine whether the goods may be salvaged, and if salvageable, the value of such salvage.

For reasons I explain in MSCD and in this 2011 article, I’m not a fan of waiving the implied duty of good faith, although it’s an option available in some jurisdictions. Saying And we can be as unreasonable as we wanna be! be isn’t a good look, particularly if what’s at stake is an issue you could address directly.

About the author

Ken Adams is the leading authority on how to say clearly whatever you want to say in a contract. He’s author of A Manual of Style for Contract Drafting, and he offers online and in-person training around the world. He’s also chief content officer of LegalSifter, Inc., a company that combines artificial intelligence and expertise to assist with review of contracts.

1 thought on ““Not Subject to a Reasonableness Standard””

  1. I share your distaste for attempted waivers of the implied duty of good faith. My favoured workaround, if possible, is to draft the affected subject matter out of the contract: ‘The Shipper is not required to salvage the goods, to determine whether the goods are salvageable, to determine the goods’ salvage value, if any, or to share with any person the benefit, if any, of salvage’.


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