Utmost? WTF!
Here are some examples of use of utmost in contracts on EDGAR:
… provided that the party so affected shall use its best efforts to avoid or remove the cause(s) of non-performance and observance with utmost dispatch.
A Seller’s agent or subagent has the following affirmative obligations: (1) To the Seller. A fiduciary duty of utmost care, integrity, honesty, and loyalty in dealings with the Seller.
Landlord’s Broker owes duties to Landlord which include utmost good faith, loyalty and fidelity.
The Participant acknowledges that his position with the Company was one of trust and confidence because of the access to the Confidential Information, requiring the Participant’s best efforts and utmost diligence to protect and maintain the confidentiality of the Confidential Information.
Company will make reasonable efforts to ensure the utmost in content availability based on its existing relationships and contractual partners.
In all but the last example, utmost is apparently meant to turbocharge a given standard, but it’s not clear how it’s meant to work. For example, how does “utmost good faith” relate to just “good faith”? I say that in this context, utmost is invoked as pointless and confusing rhetorical emphasis, and I say the heck with it.
In the last example, utmost serves as an example of how vagueness is problematic when it’s not linked to a reasonableness standard. (See this 2012 post.) This use of utmost is analogous to substantial. How much content availability (great, an abstract noun) is “utmost” content availability? I have no idea.
Lame but magic. Uberrimae fides (sp?), or utmost good faith, has a definite meaning in English law. Most notably in insurance contracts, it requires full disclosure of anything that might affect the insurer’s decision to insure, or the price at which he will do so.
What it means in the examples you give I wouldn’t like to speculate.
So does putting gibberish into Latin make it less objectionable, or more? I suspect that “utmost good faith” (uberrimae fidei is how I’ve seen it when describing a type of contract, though what this has to do with a gaping crack in the udder escapes me) really has nothing to do with good faith as such, much less reasonableness, and has more to do with full disclosure, which is probably the way in which it should be described.
Deep question, Vance. Putting it into Latin helps to obscure the gibber. Isn’t that one of the reasons lawyers (used to) use Latin expressions, to make it sound like they knew what they were talking about?
You may well be right about calling it full disclosure, although I suspect some may see it as a disclosure obligation that arises from a fiduciary relationship. One day I may spend some time reading Chitty to understand the concept better.
Fiduciary? Seriously? An applicant for an insurance policy and the issuer are just customer and supplier. Money changes hands. I can certainly see the obligation to disclose inasmuch as it informs the level of risk and therefore the price. But there’s no situation of trust there at all.
I completely agree, in the case of insurance contracts. According to Chitty on Contracts (6-142, 30th edn) the principle of UGF applies also to other types of contract, including partnership, where separate duties may arise. The key point seems to be that one party has material facts that are not known to the other party, rather than any special closeness in the relationship.
All this is a bit over my head, but I’m not too bothered, as I don’t think it has any bearing on exactly what contract language you use. More specifically, I’d do a spit take if anyone were to suggest that one needs to use the phrase “utmost good faith” in a contract to achieve a particular objective.
All this is rather over my head, but I’m not too bothered, as I don’t think it has any bearing on exactly what contract language you use. More specifically, I’d do a spit take if anyone were to suggest that one needs to use the phrase “utmost good faith” in a contract to achieve a particular objective.
OK, so “utmost good faith” refers to a legal doctrine that governs insurance contracts. (Thank you for the lesson!) But first, it does contracts a severe disservice to unnecessarily shoehorn terms of art into them. And second, you can see from my examples that “utmost” has escaped that reservation and now roams free.