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Essay Faith Good Other

Some people are bound together by faith. They believe the same things, and say so, and that connects them. Like saying the creed in church. Or agreeing about certain spiritual truths. Or sharing the same initiation or race or ritual.

But the world is a complex place. We're intimately connected to a wider, more diverse range of people than any people before in history. Our communities are hardly, if ever, closed. Even people who share faith increasingly have doubts.

Sometimes they admit it. Sometimes they don't. Sometimes they push doubt away and other times they embrace it, even deepen it.

There are more of us than ever who not only accept doubt, but see it as essential to faith. Doubt is good for you, in part because shared faith was never what we thought it was. It was mostly an illusion -- like the suburban cul-de-sac of religious truth. Living without difference does not a faith make.

It is increasingly clear to me that doubt is, in fact, the most important faith of all. Doubt invigorates faith, demands more of it, and causes us to ask more of each other. Doubt connects us to each other. Doubt binds my faith to yours. It makes me reach out. Discover. Explore. Question. Challenge. Learn. A person who doubts is one still on a journey.

If doubt defines you, too, check out Graham Greene's novel, Monsignor Quixote (1982). The story follows Father Quixote, an aging parish priest in the little town in La Mancha, Spain (yes, that La Mancha -- the allusion to Cervantes' holy-foolish Don Quixote is near-complete) as he vacations with his best friend, Sancho. Sancho is the retired, ex-mayor of the town and a committed communist. Both characters are men of very different but deep faith. But what ultimately binds them together are the ways in which they share doubt.

At one point, Father Quixote and Sancho have this conversation:

"I hope -- friend -- that you sometimes doubt too. It's human to doubt."

"I try not to doubt," the Mayor said.

"Oh, so do I. So do I. In that we are certainly alike."

And then Greene's narrator explains: "It's odd ... how sharing a sense of doubt can bring men together perhaps even more than sharing a faith. The believer will fight another believer over a shade of difference: the doubter fights only with himself."

Later on, the priest says: "Oh, I want to believe that it is all true -- and that want is the only certain thing I feel." And he wonders to himself, "How is it that when I speak of belief, I become aware always of a shadow, the shadow of disbelief haunting my belief?'" The rest of the novel shows these two characters embracing their doubts, and their doubts causing them to re-imagine their beliefs.

It was Graham Greene who said about himself late in life: "The trouble is, I don't believe my unbelief." He confused a lot of people by saying that, but I get it. Sometimes it is hard to tell when belief has come or gone. Instead, it is doubt that is the constant. Doubt shows a person wrestling God. What could be more important than that?

I also embrace doubt because the older I become, the less interested I am in belief and the more interested I am in practice. A spiritual life endures even when I doubt, misbelieve, or refuse to believe. Doubt engenders practice. I may not know for certain what I believe, but at least I can pray. I can give. I can love. I live in hope. I observe what is holy. More than belief ever could, these practices structure my life, and as Ludwig Wittgenstein once said, "You can't argue with the form of a life."

Graham Greene even took to calling himself an "agnostic Catholic" toward the end of his life. I get this, too. He was tired of belief as a measure of relationship with God. Belief comes and goes. It is fleeting. It is a state of mind. Belief is far too ephemeral upon which to rest something so important as faith. Instead, it is doubt that truly binds us together, and to God.

Jon M. Sweeney is a writer and editor living in Vermont. His new book is Verily, Verily: The KJV -- 400 Years of Influence and Beauty (Zondervan). He will be speaking at The Episcopal Church of the Heavenly Rest in NYC on Sunday morning, March 13.

Follow Jon M. Sweeney on Twitter: www.twitter.com/jonmsweeney

Good faith in Australia has been somewhat a controversial issue for some time now. The absence of any statute on the topic has furthered the uncertainty in apply this doctrine. The COAG had an opportunity during the construction of the Australian Consumer Law to insert into it’s definition of unfair terms in s23 a requirement of Good Faith to mirror the position in the EU; however, they considered the doctrine too vague and refused to recognise it. Thus, the concept of GF has been left to the Judiciary to decide in a piecemeal fashion. While some courts have expressly accepted an obligation to operate in good faith, the High Court chose to leave the issue open in Royal Botanic Gardens with Kirby J expressing reservations of the doctrine as a whole. His reservations were that Good Faith (GF) is inconsistent with conception of economic freedom; that of caveat emptor: the buyer alone is responsible for checking the goods. The issue in Royal Botanic was left open because it was unnecessary to do so. Though the High court declined to decide this issue conclusively, there is a wealth of case law in lower courts (particularly in the NSW Supreme Court) that recognise a duty of good faith as a matter of law. The origin of GF generally stems from Renard Constructions, where it was said in dicta that parties should act in good faith when carrying out contractual obligations in all contracts. Though there was much uncertainty as to the notion of GF itself, some support can be found in Allsop J’s article where he linked the notion of Good faith with that of fidelity to the bargain and fair dealing: the free exercise of will by the parties and recognition of the context they operate in. He further notes that GF’s central notion is that of honesty and cooperation. He recognises that in all contracts there should be some imposed standards of conduct, central to which is a duty to act honestly and reasonably. In this way, GF underlies the body of Contract law in Australia. Mason J recognises in his article 3 elements for GF to operate: loyalty to the bargain; compliance with honest standards of conduct and compliance with standards of conduct having regard to the parties’ intent. Clearly, there is a structure to the notion of GF genrerally. Whether it is linked to the duty to cooperate or the duty in commercial contracts to operate honestly, it can be seen that the concept of GF is not too vague so as to not be implied in contracts. It is important to note that the issues with GF only arise when implying that notion into contracts generally. It has been noted in Coal Cliff Collieries that an express duty of good faith will be enforceable and certain as long as it is part of a clear, undoubted promise (accepted and applied in Aiton). In that case, a clause requiring the parties to proceed in good faith until a more formal agreement was drawn up was held to be enforceable. Similarly in Strzelecki Holdings, the parties in not coming to a consensual negotiation did not breach a clause requiring parties to negotiate in GF. As shown, an express obligation to act in GF will be upheld. In Strzelecki the judges accepted Mason’s definition of GF and may provide a platform for other cases to be built on. Thus, express terms can be enforceable not in cooperation of the contract, but in performance of the obligations of the contract (Hooper Bailie). While express terms can be enforceable, promises to negotiate in GF are illusory and amount to nothing but an agreement to agree (Coal Cliff). A principal issue arises in determining whether to include GF as a matter of law or a matter of fact. The main problem in implying the duty as a matter of law is that courts are unable to decide the case with regards to the special circumstances of the case (i.e. intentions, pre-contractual conduct etc). Whether it is implied in law or in fact will be ultimately be determined by the understanding that the courts have of the notion of good faith. Allsop notes that before any expression of law can be implied as a general basis to all contracts, it must operate out of commonsense. Is it commonsense that parties should cooperate with each other in a contract? The judges in Secured Income thought so and thus implied a duty for parties to cooperate, or operate in a reasonable way so as to complete the contract, in all contracts. The notion of cooperation is inextricably liked to that of GF and may provide the basis for implying a term of GF into all contracts. Problems with implying in fact and in law In law: Implying a contract in law means that the contract is not sensitive to the circumstances of the parties or the wording of the contract. It is an all or nothing approach; either the contract is in Good Faith or it isn’t. There is no scope for considering the content of the contract. (Allsop) In fact: Basing the doctrine on implication in particular circumstances permits sensitivity to the aspirations of the parties, the relationship of the parties and the factual matrix in which they operate. It allows the judges to define GF as the case requires and considers intentions. BK v HJ: Good faith in exercising powers in agreement? Yes, breached this when terminating the agreement. Though it was not expressly mentioned in that case, some cases cited this as the basis for implying GF in all commercial contracts (in law)  confirmed in Vodafone Pacific. Vodafone Pacific: Good faith in exercising powers? Yes, but only in certain cases and urged caution in approaching the doctrine in this way. Must give regards to the contractual context. (supported in Esso) Good faith can be excluded provided that its exclusion is expressly set out and clear. As in Vodafone where the contract set out that the agreement was to ‘exclude all implied terms’. The court held this to be sufficient to exclude GF (court considered it anyway as it wanted to distance itself from the decision in BK v HJ which was being used to imply a duty of GF in all commercial contracts. Good Faith Generally, parties should do all things necessary to enable the other party to have the benefit of the contract (Secured Income v St Martins), but this does not mean giving into the demands of the other party (Strzelecki Holdings v Cable Sands). Also, negotiating parties owe each other no fiduciary relationship, as they are not required to act in the interests of the other party (United Rail Group Services per Alsop J). Implied obligations Generally, there is no implied duty to negotiate in good faith; however, D must not make misrepresentations/false statements (Watford v Miles – one party locked out from selling but sold anyway. Did they have an implied obligation to negotiate in good faith?) Generally, good faith is governed by estoppel and is an expectation that the parties will do what they say they will do and not make misrepresentations. ACT v Cundry - Had to get approval by the ACT govt. Coal Cliff Collieries v Sijehama - In a complex joint venture for a coal mine, the parties agreed to proceed in ‘good faith’ and in consult until a more comprehensive venture agreement was formalized  Agreement to proceed was oral. - Held: o A promise to negotiate in good faith will be enforceable depending on the precise terms of the promise and the particular construction of the contract.  Because of the complexity of the case, the issues to be resolved were too crucial to warrant the use of a vague concept to fill these gaps o A promise to negotiate in good faith may be enforced where the promise is clear and part of undoubted agreement between the parties. Otherwise, good faith is too vague to enforce on a crucial aspect of a parties’ commercial relationship. Aiton v Transfield - Application of Coal Collieries - Clause of contract set out dispute resolution process (external arbitrator) plus obligations to negotiate in good faith - Held: o The promise to negotiate in good faith was enforceable (part of some wider arrangement  certain) o However, the agreement failed to set out remuneration of the arbitrator and was void for uncertainty. o The express obligation to act in good faith was not uncertain as it was attached to some wider arrangement. Express terms to negotiate can be enforceable as part of a wider arrangement such that it can be stated with sufficient certainty. Strzelecki Holdings v Cable Sands - Parties were negotiating over the sale of land which needed to be repaired before an agreement was made  entered a MOU CL 9: if parties acting in good faith cannot come to an agreement for the sale and purchase of all land between themselves within 30 days…the MOU would cease to be of force Parties could not reach an agreement within the 30 days. Claim: o S claimed CS was acting unreasonably during negotiation and therefore was not acting in good faith (not coming to an agreement within 30 days) Issue: o Whether CS breached their express obligation to act in good faith by not coming to an agreement? Held: o Accepted Sir Anthony Mason’s three notions of Good Faith:  Obligation to cooperate in achieving contractual obligations (loyalty to promise) (ACT v Cundry)  Compliance with honest standards of conduct  Compliance with standards of conduct reasonable having regard to the parties’ intent.  However, the last one is questionable, as it does not refer to any standards of conduct. At least in the second one, there is a requirement of ‘honesty’ o Agreed with Einstein J in Aiton, that parties negotiate in good faith by:  Subjecting themselves to the process of negotiation  Keeping an open mind to the other party’s suggestions.  To deal with each other in this fashion would show loyalty to the MOU (United Rail) o On the facts, there was deemed to be No Breach o Parties should be given some self-interested freedom during negotiation. Simply because one party’s offer may have been unreasonable to another party or the court, does not mean that the rejection of that offer amounts to bad faith or lack of honesty (provided that negotiations are not called off in the process of rejection)

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