The Limits of Contractual 'Sole' Discretion Under the Implied Covenant of Good Faith and Fair Dealing
This article explores the evolving contours of the implied covenant, as applied to discretionary contractual rights, and offers practical guidance for decision makers and counterparties to consider when dealing with contractual discretion.
April 05, 2024 at 10:00 AM
8 minute read
ContractsA party's express right to exercise "sole discretion" in exercising a contractual right would appear, on its face, to insulate that party from liability for any and all exercises of that discretion. In practice, however, the grant of "sole discretion" to a contracting party has not been given such a wide berth by Delaware and New York courts. These courts have routinely held that it is not a violation of the implied covenant of good faith and fair dealing for a party to exercise a contractual, discretionary right out of economic self-interest, even to the detriment of a counterparty, provided that the decision made is not arbitrary or irrational.
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