As pleaded in the Particulars of Claim, it is Yam Seng's case that there was an implied term of the Agreement that the parties would deal with each other in good faith. 正如任成在索赔详情中申辩的那样，协议中有一条默示条款，即双方将真诚相待。
The subject of whether English law does or should recognise a general duty to perform contracts in good faith is one on which a large body of academic literature exists. However, I not am aware of any decision of an English court, and none was cited to me, in which the question has been considered in any depth. 关于英国法律是否承认或应当承认善意履行合同的一般义务这一问题，有大量的学术文 献。然而，我不知道英国法院在任何判决中对这一问题进行过任何深入的研究，也没有任何判决被援引给我。
The general view among commentators appears to be that in English contract law there is no legal principle of good faith of general application: see Chitty on Contract Law (31st Ed), Vol 1, para 1-039. In this regard the following observations of Bingham LJ (as he then was) in Interfoto Picture Library Ltd v Stiletto Visual Programmes Ltd [1989] 1 QB 433 at 439 are often quoted: 评论家的普遍观点似乎是，在英国合同法中没有普遍适用的诚信法律原则：见 Chitty on Contract Law（第 31 版），第 1 卷，第 1-039 段。在这方面，人们经常引用宾汉姆大法官（他当时的职务）在 Interfoto Picture Library Ltd v Stiletto Visual Programmes Ltd [1989] 1 QB 433 at 439 一案中发表的如下意见：
"In many civil law systems, and perhaps in most legal systems outside the common law world, the law of obligations recognises and enforces an overriding principle that in making and carrying out contracts parties should act in good faith. This does not simply mean that they should not deceive each other, a principle which any legal system must recognise; its effect is perhaps most aptly conveyed by such metaphorical colloquialisms as 'playing fair', 'coming clean' or 'putting one's cards face upwards on the table.' It is in essence a principle of fair open dealing... English law has, characteristically, committed itself to no such overriding principle but has developed piecemeal solutions in response to demonstrated problems of unfairness." "在许多大陆法系中，也许在普通法系以外的大多数法律体系中，义务法都承认并执行一项压倒一切的原则，即当事人在订立和履行合同时应诚信行事。这不仅仅是指双方不得相互欺骗，这是任何法律制度都必须承认的原则；"公平竞争"、"坦白交代 "或 "把牌朝上摆在桌面上 "等比喻性的俗语也许最恰当地表达了这一原则的效果。它本质上是一项公平公开的交易原则............ "英国法律的特点是，它并不坚持这种压倒一切的原则，而是针对显而易见的不公平问题制定了零敲碎打的解决办法。
Another case sometimes cited for the proposition that English contract law does not recognise a duty of good faith is Walford v Miles [1992] 2 AC 128, where the House of Lords considered that a duty to negotiate in good faith is "inherently repugnant to the adversarial position of the parties when involved in negotiations" and "unworkable in practice" (per Lord Ackner at p.138). That case was concerned, however, with the position of negotiating parties and not with the duties of parties who have entered into a contract and thereby undertaken obligations to each other. 另一个有时被用来证明英国合同法不承认诚信义务的案例是 Walford v Miles [1992] 2 AC 128 案，上议院在该案中认为，诚信谈判的义务 "本质上与参与谈判各方的对抗地位相抵触"，而且 "在实践中是行不通的"（根据 Ackner 勋爵，第 138 页）。但该案涉及的是谈判各方的立场，而不是已签订合同并因此对彼此承担义务的各方的责任。
Three main reasons have been given for what Professor McKendrick has called the "traditional English hostility" towards a doctrine of good faith: see McKendrick, Contract Law ( ) pp.221-2. The first is the one referred to by Bingham LJ in the passage quoted above: that the preferred method of English law is to proceed incrementally by fashioning particular solutions in response to particular problems rather than by enforcing broad overarching principles. A second reason is that English law is said to embody an ethos of individualism, whereby the parties are free to pursue their own self-interest not only in negotiating but also in performing contracts provided they do not act in breach of a term of the contract. The third main reason given is a fear that recognising a general requirement of good faith in the performance of contracts would create too much uncertainty. There is concern that the content of the obligation would be vague and subjective and that its adoption would undermine the goal of contractual certainty to which English law has always attached great weight. 麦肯德里克教授称英国 "传统上敌视 "诚信原则，主要有三个原因：见 McKendrick, Contract Law ( ) pp.221-2。第一个原因是宾汉姆大法官在上文引述的段落中提到的：英国法律倾向于采用渐进的方法，针对特定问题制定特定的解决方案，而不是执行广泛的总体原则。第二个原因是，据说英国法律体现了一种个人主义精神，根据这种精神，当事人不仅在谈判中，而且在履行合同时，只要不违反合同条款，都可以自由追求自身利益。第三个主要原因是担心在履行合同时承认诚信的一般要求会造成太多的不确定性。有人担心该义务的内容会含糊不清和主观臆断，而且采用该义务会破坏英国法律一向十分重视的合同确定性目标。
In refusing, however, if indeed it does refuse, to recognise any such general obligation of good faith, this jurisdiction would appear to be swimming against the tide. As noted by Bingham LJ in the Interfoto case, a general principle of good faith (derived from Roman law) is recognised by most civil law systems - including those of Germany, France and Italy. From that source references to good faith have already entered into English law via EU legislation. For example, the Unfair Terms in Consumer Contracts Regulations 1999, which give effect to a European directive, contain a requirement of good faith. Several other examples of legislation implementing EU directives which use this concept are mentioned in Chitty on Contract Law (31st Ed), Vol 1 at para 1-043. Attempts to harmonise the contract law of EU member states, such as the Principles of European Contract Law proposed by the Lando Commission and the European Commission's proposed Regulation for a Common European Sales Law on which consultation is currently taking place, also embody a general duty to act in accordance with good faith and fair dealing. There can be little doubt that the penetration of this principle into English law and the pressures towards a more unified European law of contract in which the principle plays a significant role will continue to increase. 然而，该司法管辖区拒绝承认（如果它确实拒绝承认）任何此类一般诚信义务，似乎是在逆流而行。正如宾汉姆大法官在 Interfoto 案中所指出的，大多数大陆法系--包括德国、法国和意大利--都承认善意的一般原则（源于罗马法）。从这一来源出发，诚信的提法已经通过欧盟立法进入英国法律。例如，《1999 年消费者合同中的不公平条款条例》（Unfair Terms in Consumer Contracts Regulations 1999）实施了一项欧洲指令，其中包含诚信要求。Chitty on Contract Law（第 31 版）第 1 卷第 1-043 段还提到了其他几个使用这一概念的欧盟指令实施立法的例子。试图协调欧盟成员国合同法的努力，如兰多委员会提出的《欧洲合同法原则》和欧盟委员会提出的《欧洲共同销售法条例》（目前正在就该条例进行磋商），也体现了按照诚信和公平交易行事的一般义务。毫无疑问，这一原则在英国法律中的渗透以及建立一个更加统一的欧洲合同法的压力将继续增加，而这一原则将在其中发挥重要作用。
It would be a mistake, moreover, to suppose that willingness to recognise a doctrine of good faith in the performance of contracts reflects a divide between civil law and common law systems or between continental paternalism and Anglo-Saxon individualism. Any such notion is gainsaid by that fact that such a doctrine has long been recognised in the United States. The New York Court of Appeals said in 1918: "Every contract implies good faith and fair dealing between the parties to it": Wigand v Bachmann-Bechtel Brewing Co, 222 NY 272 at 277. The Uniform Commercial Code, first promulgated in 1951 and which has been adopted by many States, provides 此外，如果认为愿意承认合同履行中的诚信原则反映了大陆法系和英美法系之间的分歧，或者是大陆家长制和盎格鲁-撒克逊个人主义之间的分歧，那就大错特错了。美国长期以来一直承认诚信原则，这一事实驳斥了任何此类观点。纽约上诉法院在 1918 年指出"每份合同都意味着合同双方之间的诚信和公平交易"：Wigand v Bachmann-Bechtel Brewing Co, 222 NY 272 at 277。1951 年首次颁布的《统一商法典》已被许多国家采用，其中规定
in section 1-203 that "every contract or duty within this Act imposes an obligation of good faith in its performance or enforcement." Similarly, the Restatement (Second) of Contracts states in section 205 that "every contract imposes upon each party a duty of good faith and fair dealing in its performance and enforcement." 第 1-203 条规定，"本法范围内的每项合同或责任在其履行或执行中都规定了诚信义务"。同样，《合同重述（第二版）》第 205 条规定，"每份合同在其履行和执行过程中都对每一方当事人规定了诚信和公平交易的义务"。
In recent years the concept has been gaining ground in other common law jurisdictions. Canadian courts have proceeded cautiously in recognising duties of good faith in the performance of commercial contracts but have, at least in some situations, been willing to imply such duties with a view to securing the performance and enforcement of the contract or, as it is sometimes put, to ensure that parties do not act in a way that eviscerates or defeats the objectives of the agreement that they have entered into: see e.g. Transamerica Life Inc v ING Canada Inc (2003) 68 OR (3d) 457, 468. 近些年来，这一概念在其他普通法管辖区越来越受到重视。加拿大法院在承认商业合同履行中的诚信义务时一直很谨慎，但至少在某些情况下，愿意暗示这种义务，以确保合同的履行和执行，或者，有时也可以这样说，确保当事人的行为不会破坏或违背他们所签订的协议的目标：例如，见 Transamerica Life Inc v ING Canada Inc (2003) 68 OR (3d) 457, 468。
In Australia the existence of a contractual duty of good faith is now well established, although the limits and precise juridical basis of the doctrine remain unsettled. The springboard for this development has been the decision of the New South Wales Court of Appeal in Renard Constructions (ME) Pty v Minister for Public Works (1992) 44 NSWLR 349, where Priestley JA said (at 95) that: 在澳大利亚，诚信合同义务的存在现已得到确立，尽管该理论的局限性和确切的司法基础仍未解决。新南威尔士州上诉法院在 Renard Constructions (ME) Pty v Minister for Public Works (1992) 44 NSWLR 349 一案中的判决是这一发展的跳板：
"... people generally, including judges and other lawyers, from all strands of the community, have grown used to the courts applying standards of fairness to contract which are wholly consistent with the existence in all contracts of a duty upon the parties of good faith and fair dealing in its performance. In my view this is in these days the expected standard, and anything less is contrary to prevailing community expectations." "......一般人，包括法官和其他律师，来自社会各阶层的人，已经习惯于法院对合同适用公平的标准，这些标准与所有合同中存在的各方在履行合同时诚信和公平交易的责任完全一致。在我看来，这是当今社会所期望的标准，任何不符合这一标准的做法都有悖于社会的普遍期望"。
Although the High Court has not yet considered the question (and declined to do so in Royal Botanic Gardens and Domain Trust v Sydney City Council (2002) 186 ALR 289) there has been clear recognition of the duty of good faith in a substantial body of Australian case law, including further significant decisions of the New South Wales Court of Appeal in Alcatel Australia Ltd v Scarcella (1998) 44 NSWLR 349, Burger King Corp v Hungry Jack's Pty Ltd [2001] NWSCA 187 and Vodafone Pacific Ltd v Mobile Innovations Ltd [2004] NSWCA 15. 尽管高等法院尚未审议该问题（并在皇家植物园和领域信托公司诉悉尼市议会 (2002) 186 ALR 289 一案中拒绝审议该问题），但澳大利亚的大量判例法已明确承认诚信义务、其中包括新南威尔士州上诉法院在 Alcatel Australia Ltd v Scarcella (1998) 44 NSWLR 349、Burger King Corp v Hungry Jack's Pty Ltd [2001] NWSCA 187 和 Vodafone Pacific Ltd v Mobile Innovations Ltd [2004] NSWCA 15 案中做出的重要裁决。
In New Zealand a doctrine of good faith is not yet established law but it has its advocates: see in particular the dissenting judgment of Thomas J in Bobux Marketing Ltd v Raynor Marketing Ltd [2002] 1 NZLR 506 at 517 . 在新西兰，诚信原则尚未成为既定法律，但也有其倡导者：特别见 Thomas J 在 Bobux Marketing Ltd 诉 Raynor Marketing Ltd [2002] 1 NZLR 506 at 517 一案中的反对判决。
Closer to home, there is strong authority for the view that Scottish law recognises a broad principle of good faith and fair dealing: see the decision of the House of Lords in Smith v Bank of Scotland, 1997 SC (HL) 111 esp. at p. 121 (per Lord Clyde). 就近而言，苏格兰法律承认广泛的诚信和公平交易原则的观点具有很强的权威性：见上议院在 Smith 诉苏格兰银行案中的裁决，1997 SC (HL) 111，特别是第 121 页（根据克莱德勋爵的意见）。
Under English law a duty of good faith is implied by law as an incident of certain categories of contract, for example contracts of employment and contracts between partners or others whose relationship is characterised as a fiduciary one. I doubt that English law has reached the stage, however, where it is ready to recognise a requirement of good faith as a duty implied by law, even as a default rule, into all commercial contracts. Nevertheless, there seems to me to be no difficulty, following the established methodology of English law for the implication of terms in fact, in implying such a duty in any ordinary commercial contract based on the presumed intention of the parties. 根据英国法律，诚信义务是作为某些类别合同的附带条件而由法律默示的，例如雇佣合同和合伙人或其他关系被定性为信托关系的人之间的合同。不过，我怀疑英国法律是否已达到这样一个阶段，即它已准备好承认诚信要求是法律所默示的一项义务，甚至是所有商业合同中的一项默认规则。尽管如此，我认为，按照英国法律关于事实条款含义的既定方法，根据双方当事人的推定意图，在任何普通商业合同中隐含这样一种责任，似乎没有任何困难。
Traditionally, the two principal criteria used to identify terms implied in fact are that the term is so obvious that it goes without saying and that the term is necessary to give business efficacy to the contract. More recently, in Attorney General for Belize v Belize Telecom Ltd [2009] 1 WLR 1988 at 1993-5, the process of implication has been analysed as an exercise in the construction of the contract as a whole. In giving the judgment of the Privy Council in that case, Lord Hoffmann characterised the traditional criteria, not as a series of independent tests, but rather as different ways of approaching what is ultimately always a question of construction: what would the contract, read as a whole against the relevant background, reasonably be understood to mean? 传统上，用于确定事实上隐含的条款的两个主要标准是：该条款非常明显，不言而喻；以及该条款是赋予合同商业效力所必需的。最近，在伯利兹总检察长诉伯利兹电信有限公司[2009] 1 WLR 1988 at 1993-5 一案中，隐含的过程被分析为对合同进行整体解释的过程。霍夫曼勋爵（Lord Hoffmann）在对该案作出枢密院判决时，将传统标准描述为不是一系列独立的检验标准，而是以不同的方式来处理最终始终是一个解释问题的问题：根据相关背景对合同进行整体解读，可以合理地理解合同的含义是什么？
The modern case law on the construction of contracts has emphasised that contracts, like all human communications, are made against a background of unstated shared understandings which inform their meaning. The breadth of the relevant background and the fact that it has no conceptual limits have also been stressed, particularly in the famous speech of Lord Hoffmann in Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896 at pp.912-3, as further explained in BCCI v Ali [2002] 1 AC 251 at p. 269. 关于合同构建的现代判例法强调，合同与所有人类交流一样，都是在未明示的共同理解背景下订立的，而这些理解则是合同含义的基础。霍夫曼勋爵在投资者赔偿计划有限公司诉西布罗姆维奇建筑协会 [1998] 1 WLR 896 一案（第 912-3 页）中发表的著名演讲也强调了相关背景的广泛性以及它没有概念限制的事实，BCCI 诉阿里 [2002] 1 AC 251 一案（第 269 页）中对此作了进一步解释。
Importantly for present purposes, the relevant background against which contracts are made includes not only matters of fact known to the parties but also shared values and norms of behaviour. Some of these are norms that command general social acceptance; others may be specific to a particular trade or commercial activity; others may be more specific still, arising from features of the particular contractual relationship. Many such norms are naturally taken for granted by the parties when making any contract without being spelt out in the document recording their agreement. 重要的是，就目前而言，订立合同的相关背景不仅包括当事人已知的事实，还包括共同的价值观和行为规范。其中一些是社会普遍接受的规范；另一些可能是某一行业或商业活动特有的规范；还有一些可能更为具体，是由特定合同关系的特点所产生的规范。当事人在订立合同时自然会将许多此类规范视为理所当然，而不会在记录其协议的文件中加以明确。
A paradigm example of a general norm which underlies almost all contractual relationships is an expectation of honesty. That expectation is essential to commerce, which depends critically on trust. Yet it is seldom, if ever, made the subject of an express contractual obligation. Indeed if a party in negotiating the terms of a contract were to seek to include a provision which expressly required the other party to act honestly, the very fact of doing so might well damage the parties' relationship by the lack of trust which this would signify. 诚实预期是几乎所有契约关系所依据的一般规范的一个典型例子。这种期望对商业至关重要，因为商业的关键在于信任。然而，这种期望很少（如果有的话）成为明确的合同义务的主题。事实上，如果一方当事人在谈判合同条款时试图列入一项条款，明确要求另一方当事人诚实行事，那么这样做本身就很可能因缺乏信任而损害双方当事人的关系。
The fact that commerce takes place against a background expectation of honesty has been recognised by the House of Lords in HIH Casualty v Chase Manhattan Bank [2003] 2 Lloyd's Rep 61. In that case a contract of insurance contained a clause which stated that the insured should have "no liability of any nature to the insurers for any information provided". A question arose as to whether these words meant that the insured had no liability even for deceit where the insured's agent had dishonestly provided information known to be false. The House of Lords affirmed the decision of the courts below that, even though the clause read literally would cover liability for deceit, it was not reasonably to be understood as having that meaning. As Lord Bingham put it at [15]: 在 HIH Casualty v Chase Manhattan Bank [2003] 2 Lloyd's Rep 61 一案中，上议院承认了商业活动是在对诚实抱有期望的背景下进行的这一事实。在该案中，一份保险合同包含一项条款，规定被保险人 "对保险人提供的任何信息不承担任何性质的责任"。问题是，这些文字是否意味着，如果被保险人的代理人不诚实地提供了已知为虚假的信息，被保险人甚至对欺骗也不承担任何责任。上议院确认了下级法院的裁决，即即使从字面上理解该条款会涵盖欺骗责任，也不能合理地理解为具有该含义。正如宾汉姆勋爵在[15]中所说：
"Parties entering into a commercial contract ... will assume the honesty and good faith of the other; absent such an assumption they would not deal." "签订商业合同的双方......将假定对方诚实守信；如果没有这种假定，他们就不会进行交易"。
To similar effect Lord Hoffmann observed at [68] that parties "contract with one another in the expectation of honest dealing", and that: 霍夫曼勋爵在第[68]段指出，当事人 "在期望诚实交易的情况下相互订立合同"，这与此大同小异：
"... in the absence of words which expressly refer to dishonesty, it goes without saying that underlying the contractual arrangements of the parties there will be a common assumption that the persons involved will behave honestly." "......在没有明确提及不诚实的措辞的情况下，不言而喻，当事人合同安排的基础将是一个共同的假设，即当事人将诚实行事"。
137. As a matter of construction, it is hard to envisage any contract which would not reasonably be understood as requiring honesty in its performance. The same conclusion is reached if the traditional tests for the implication of a term are used. In particular the requirement that parties will behave honestly is so obvious that it goes without saying. Such a requirement is also necessary to give business efficacy to commercial transactions. 137.作为一个解释问题，很难设想有任何合同不会被合理地理解为要求诚实履约。如果采用传统的条款含义检验标准，也会得出同样的结论。尤其是要求当事人诚实守信，这一点显而易见，不言而喻。这种要求对于赋予商业交易以商业效力也是必要的。
138. In addition to honesty, there are other standards of commercial dealing which are so generally accepted that the contracting parties would reasonably be understood to take them as read without explicitly stating them in their contractual document. A key aspect of good faith, as I see it, is the observance of such standards. Put the other way round, not all bad faith 138.除了诚实之外，还有其他一些商业交易标准，这些标准已被普遍接受，以至于缔约双方在没有在合同文件中明确说明的情况下，也会被合理地理解为将这些标准视为已读。在我看来，诚信的一个重要方面就是遵守这些标准。反过来说，并非所有的恶意都是
conduct would necessarily be described as dishonest. Other epithets which might be used to describe such conduct include "improper", "commercially unacceptable" or "unconscionable". 這 些 行 為 必 然 會 被 形 容 為 不 誠 實 。其他可用于描述此类行为的词语包括 "不当"、"商业上不可接受 "或 "不合情理"。
139. Another aspect of good faith which overlaps with the first is what may be described as fidelity to the parties' bargain. The central idea here is that contracts can never be complete in the sense of expressly providing for every event that may happen. To apply a contract to circumstances not specifically provided for, the language must accordingly be given a reasonable construction which promotes the values and purposes expressed or implicit in the contract. That principle is well established in the modern English case law on the interpretation of contracts: see e.g. Rainy Sky SA v Kookmin Bank [2011] 1 WLR 2900; Lloyds TSB Foundation for Scotland v Lloyds Banking Group Plc [2013] UKSC 3 at [23], [45] and [54]. It also underlies and explains, for example, the body of cases in which terms requiring cooperation in the performance of the contract have been implied: see Mackay v Dick (1881) 6 App Cas 251, 263; and the cases referred to in Chitty on Contracts ( ), Vol 1 at paras 13-012 - 13-014. 139.善意的另一个方面与第一个方面重叠，可以说是忠实于双方的交易。这里的中心思想是，合同不可能是完整的，不可能明确规定可能发生的所有事件。因此，要将合同适用于未明确规定的情况，就必须对合同语言进行合理解释，以促进合同中明示或暗示的价值和目的。这一原则在有关合同解释的现代英国判例法中已得到确立：例如，参见 Rainy Sky SA v Kookmin Bank [2011] 1 WLR 2900；Lloyds TSB Foundation for Scotland v Lloyds Banking Group Plc [2013] UKSC 3 at [23], [45] and [54]。例如，它也是要求合作履行合同的条款被默示的案例的基础和解释：见 Mackay v Dick (1881) 6 App Cas 251, 263；以及 Chitty on Contracts ( )，第 1 卷第 13-012 - 13-014 段中提到的案例。
140. The two aspects of good faith which I have identified are consistent with the way in which express contractual duties of good faith have been interpreted in several recent cases: see Berkeley Community Villages Ltd v Pullen [2007] EWHC at [95]-[97]; CPC Group Ltd v Qatari Diar Real Estate Investment Co [2010] EWHC 1535 (Ch) at [246]. 140.我所确定的诚信的两个方面与最近几起案件中解释明示诚信合同义务的方式一致：见 Berkeley Community Villages Ltd v Pullen [2007] EWHC at [95]-[97]; CPC Group Ltd v Qatari Diar Real Estate Investment Co [2010] EWHC 1535 (Ch) at [246]。
141. What good faith requires is sensitive to context. That includes the core value of honesty. In any situation it is dishonest to deceive another person by making a statement of fact intending that other person to rely on it while knowing the statement to be untrue. Frequently, however, the requirements of honesty go further. For example, if A gives information to B knowing that is likely to rely on the information and A believes the information to be true at the time it is given but afterwards discovers that the information was, or has since become, false, it may be dishonest for A to keep silent and not to disclose the true position to B. Another example of conduct falling short of a lie which may, depending on the context, be dishonest is deliberately avoiding giving an answer, or giving an answer which is evasive, in response to a request for information. 141.善意的要求对背景十分敏感。这包括诚实的核心价值。在任何情况下，明知他人所陈述的事实不真实，却通过作出事实陈述来欺骗他人，意图使他人依赖该事实陈述，都是不诚实的行为。然而，诚信的要求往往更进一步。舉 例 來 說 ， 如 果 甲 知 道 乙 很 可 能 會 依 賴 該 資 料 而 向 他 提 供 資 料 ， 而 甲 在 提 供 資 料 時 相 信 該 資 料 是 真 確 的 ， 但 事 後 發 現 該 資 料 是 假 的 或 已 變 成 假 的 ， 甲 如 保 持 緘 默 而 不 向 乙 披 露 真 實 情 況 ， 便 可 能 是 不 誠 實 的 行 為 。
142. In some contractual contexts the relevant background expectations may extend further to an expectation that the parties will share information relevant to the performance of the contract such that a deliberate omission to disclose such information may amount to bad faith. English law has traditionally drawn a sharp distinction between certain relationships - such as partnership, trusteeship and other fiduciary relationships - on the one hand, in which the parties owe onerous obligations of disclosure to each 142.在某些合同背景下，相关的背景预期可能会进一步扩展到双方当事人共享与合同履行相关的信息的预期，以至于故意不披露此类信息可能构成恶意。英国法律传统上对某些关系--如合伙关系、托管关系和其他信托关系--作了明确的区分，在这 些关系中，当事人对彼此负有繁重的披露义务。
other, and other contractual relationships in which no duty of disclosure is supposed to operate. Arguably at least, that dichotomy is too simplistic. While it seems unlikely that any duty to disclose information in performance of the contract would be implied where the contract involves a simple exchange, many contracts do not fit this model and involve a longer term relationship between the parties which they make a substantial commitment. Such "relational" contracts, as they are sometimes called, may require a high degree of communication, cooperation and predictable performance based on mutual trust and confidence and involve expectations of loyalty which are not legislated for in the express terms of the contract but are implicit in the parties' understanding and necessary to give business efficacy to the arrangements. Examples of such relational contracts might include some joint venture agreements, franchise agreements and long term distributorship agreements. 在其他合同关系中，不存在披露义务。至少可以说，这种二分法过于简单。虽然在合同涉及简单交换的情况下，似乎不太可能隐含在合同履行过程中披露信息的义务， 但许多合同并不符合这种模式，它们涉及双方做出实质性承诺的长期关系。这类 "关系型 "合同，有时也被称为 "关系型 "合同，可能需要在相互信任的基础上进行高 度的沟通、合作和可预测的履行，并涉及对忠诚的期望，这种期望在合同的明确条款中没有明文规 定，但在双方的理解中是隐含的，是使合同安排具有商业效力所必需的。这类关系合同的例子可能包括一些合资企业协议、特许经营协议和长期分销协议。
143. The Agreement in this case was a distributorship agreement which required the parties to communicate effectively and cooperate with each other in its performance. In particular, ITC needed to plan production and take account of the expected future demand from Yam Seng for Manchester United products. For its part Yam Seng, which was incurring expense in marketing the products and was trying to obtain orders, was arguably entitled to expect that it would be kept informed of ITC's best estimates of when products would be available to sell and would be told of any material change in this information without having to ask. Yam Seng's case was not advanced in this way, however, and it is therefore unnecessary for me to decide whether the requirements of good faith in this case extended to any such positive obligations of disclosure. 143.本案中的协议是一份分销协议，要求双方在履行协议时进行有效沟通和相互合作。特别是，ITC 需要计划生产并考虑到 Yam Seng 对曼联产品的预期未来需求。就 Yam Seng 而言，它在推销产品和努力获得订单方面花费不菲，因此可以说它有 权期望随时了解国贸中心关于何时可以出售产品的最佳估计，并有权在无需询问的情 况下获知这一信息的任何重大变化。然而，Yam Seng 的案件并不是以这种方式提出的，因此，我没有必要决定本案中的诚信要求是否延伸到任何此类积极的披露义务。
144. Although its requirements are sensitive to context, the test of good faith is objective in the sense that it depends not on either party's perception of whether particular conduct is improper but on whether in the particular context the conduct would be regarded as commercially unacceptable by reasonable and honest people. The standard is thus similar to that described by Lord Nicholls in a different context in his seminal speech in Royal Brunei Airlines v Tan [1995] 2 AC 378 at pp.389-390. This follows from the fact that the content of the duty of good faith is established by a process of construction which in English law is based on an objective principle. The court is concerned not with the subjective intentions of the parties but with their presumed intention, which is ascertained by attributing to them the purposes and values which reasonable people in their situation would have had. 144.虽然其要求对具体情况很敏感，但善意的检验标准是客观的，因为它不取决于任何一方对特定行为是否不当的看法，而是取决于在特定情况下，该行为是否会被通情达理的诚实人视为商业上不可接受的行为。因此，该标准类似于 Nicholls 勋爵在 Royal Brunei Airlines v Tan [1995] 2 AC 378 一案（第 389-390 页）的开创性演讲中在不同背景下描述的标准。这是因为诚信义务的内容是通过英国法中以客观原则为基础的解释过程确定的。法院关注的不是当事人的主观意图，而是他们的推定意图，而这种推定意图是通过赋予他们在其处境中的合理的人会有的目的和价值观来确定的。
145. Understood in the way I have described, there is in my view nothing novel or foreign to English law in recognising an implied duty of good faith in the performance of contracts. It is consonant with the theme identified by 145.我认为，按照我所描述的方式来理解，英国法律承认在履行合同时的默示诚信义务并没有什么新颖或陌生之处。它与
Lord Steyn as running through our law of contract that reasonable expectations must be protected: see First Energy (UK) Ltd v Hungarian International Bank Ltd [1993] 2 Lloyd's Rep 194, 196; and (1997) 113 LQR 433. Moreover such a concept is, I believe, already reflected in several lines of authority that are well established. One example is the body of cases already mentioned in which duties of cooperation in the performance of the contract have been implied. Another consists of the authorities which show that a power conferred by a contract on one party to make decisions which affect them both must be exercised honestly and in good faith for the purpose for which it was conferred, and must not be exercised arbitrarily, capriciously or unreasonably (in the sense of irrationally): see e.g. Abu Dhabi National Tanker Co v. Product Star Shipping Ltd (The "Product Star") [1993] 1 Lloyd's Rep 397, 404; Socimer International Bank Ltd v Standard Bank London Ltd [2008] 1 Lloyd's Rep 558, 575-7. A further example concerns the situation where the consent of one party is needed to an action of the other and a term is implied that such consent is not to be withheld unreasonably (in a similar sense): see e.g. Gan v Tai Ping (Nos 3) [2001] Lloyd's Rep IR 667; Eastleigh BC v Town Quay Developments Ltd [2010] 2 P&CR 2. Yet another example, I would suggest, is the line of authorities of which the Interfoto case is one which hold that an onerous or unusual contract term on which a party seeks to rely must be fairly brought to the notice of the other party if it is to be enforced. Steyn 勋爵认为，合理期望必须受到保护，这一点贯穿于我们的合同法：见 First Energy (UK) Ltd v Hungarian International Bank Ltd [1993] 2 Lloyd's Rep 194, 196；以及 (1997) 113 LQR 433。此外，我认为这一概念已经反映在一些已经确立的权威中。其中一个例子是前面提到的在履行合同中隐含合作义务的案例。另一个例子是，有权威人士指出，合同赋予一方当事人作出对双方都有影响的决定的权 力，必须诚实和善意地行使，以达到赋予该权力的目的，不得任意、反复或不合理地行使 （在不合理的意义上）：例如，见《阿布扎比国家轮船运输公司案》（Abu Dhabi National Tailing Ltd.）。例如 Abu Dhabi National Tanker Co 诉 Product Star Shipping Ltd（"Product Star"）[1993] 1 Lloyd's Rep 397, 404；Socimer International Bank Ltd 诉 Standard Bank London Ltd [2008] 1 Lloyd's Rep 558, 575-7。另一个例子是，一方当事人的行为需要另一方当事人的同意，并且隐含着不得无理拒绝同意的条款（在类似意义上）：例如，见 Gan 诉 Tai Ping (Nos 3) [2001] Lloyd's Rep IR 667；Eastleigh BC 诉 Town Quay Developments Ltd [2010] 2 P&CR 2。我想说的另一个例子是Interfoto案中的一系列判例，这些判例认为，一方当事人试图依赖的繁琐或不寻常的合同条款必须公平地引起另一方当事人的注意才能执行。
146. There are some further observations that I would make about the reasons I mentioned earlier for the reluctance of English law to recognise an implied duty on contracting parties to deal with each other in good faith. 146.我还想就我前面提到的英国法律不愿意承认订约各方有诚信交易的默示义务的原因发表一些看法。
147. First, because the content of the duty is heavily dependent on context and is established through a process of construction of the contract, its recognition is entirely consistent with the case by case approach favoured by the common law. There is therefore no need for common lawyers to abandon their characteristic methods and adopt those of civil law systems in order to accommodate the principle. 147.首先，由于义务的内容在很大程度上取决于上下文，并且是通过合同的解释过程确定的，因此对义务的承认完全符合普通法所偏爱的逐案处理的方法。因此，普通法律师没有必要放弃其特有的方法，而采用大陆法系的方法来适应这一原则。
148. Second, as the basis of the duty of good faith is the presumed intention of the parties and meaning of their contract, its recognition is not an illegitimate restriction on the freedom of the parties to pursue their own interests. The essence of contracting is that the parties bind themselves in order to co-operate to their mutual benefit. The obligations which they undertake include those which are implicit in their agreement as well as those which they have made explicit. 148.其次，由于诚信义务的基础是当事人的推定意图及其合同的含义，承认诚信义务并不是对当事人追求自身利益的自由的非法限制。订约的本质是双方为了共同利益进行合作而约束自己。他们所承担的义务包括协议中隐含的义务和他们明示的义务。
149. Third, a further consequence of the fact that the duty is based on the parties' presumed intention is that it is open to the parties to modify the scope of the duty by the express terms of their contract and, in principle at 149.第三，该义务以双方当事人的推定意图为基础这一事实的另一个后果是，双方当事人可 以通过其合同的明确条款来修改该义务的范围，原则上是
least, to exclude it altogether. I say "in principle at least" because in practice it is hardly conceivable that contracting parties would attempt expressly to exclude the core requirement to act honestly. 至少是将其完全排除在外。我之所以说 "至少在原则上"，是因为在实践中，很难想象缔约各方会试图明确排除诚实行事这一核心要求。
150. Fourth, I see no objection, and some advantage, in describing the duty as one of good faith "and fair dealing". I see no objection, as the duty does not involve the court in imposing its view of what is substantively fair on the parties. What constitutes fair dealing is defined by the contract and by those standards of conduct to which, objectively, the parties must reasonably have assumed compliance without the need to state them. The advantage of including reference to fair dealing is that it draws attention to the fact that the standard is objective and distinguishes the relevant concept of good faith from other senses in which the expression "good faith" is used. 150.第四，我认为将这一义务描述为真诚 "和公平交易 "的义务并无异议，而且还有一些好处。我认为不存在反对意见，因为该义务并不涉及法院将其对实质公平的看法强加给当事人。构成公平交易的内容是由合同和行为标准界定的，客观地说，双方当事人必须合理地假定遵守了这些标准，而无需加以说明。提及公平交易的好处在于，它提请人们注意该标准是客观的这一事实，并将相关的诚信概念与使用 "诚信 "一词的其他含义区分开来。
151. Fifth, in so far as English law may be less willing than some other legal systems to interpret the duty of good faith as requiring openness of the kind described by Bingham LJ in the Interfoto case as "playing fair"" "coming clean" or "putting one's cards face upwards on the table", this should be seen as a difference of opinion, which may reflect different cultural norms, about what constitutes good faith and fair dealing in some contractual contexts rather than a refusal to recognise that good faith and fair dealing are required. 151.第五，与其他一些法律体系相比，英国法律可能不太愿意将诚信义务解释为要求宾汉姆大法官在 "Interfoto "案中所描述的那种 "公平竞争"、"坦白交代 "或 "把自己的牌正面朝上摆在桌面上 "的公开性，但这应被看作是对在某些合同情况下什么构成诚信和公平交易的意见分歧，这可能反映了不同的文化规范，而不是拒绝承认诚信和公平交易是必要的。
152. Sixth, the fear that recognising a duty of good faith would generate excessive uncertainty is unjustified. There is nothing unduly vague or unworkable about the concept. Its application involves no more uncertainty than is inherent in the process of contractual interpretation. 152.第六，担心承认诚信义务会产生过度的不确定性是没有道理的。这一概念没有任何过分含糊或不可行之处。其适用所涉及的不确定性并不比合同解释过程中固有的不确定性多。
153. In the light of these points, I respectfully suggest that the traditional English hostility towards a doctrine of good faith in the performance of contracts, to the extent that it still persists, is misplaced. 153.有鉴于此，我谨此建议，英国传统上对履行合同中的诚信原则所持的敌意--只要这种敌意仍然存在--是错误的。
154. I have emphasised in this discussion the extent to which the content of the duty to perform a contract in good faith is dependent on context. It was Mr Salter's submission that the relevant content of the duty in this case was captured by two more specific terms which Yam Seng contends are to be implied into the Agreement. I therefore turn to consider these. 154.我在讨论中强调了善意履行合同的义务的内容在多大程度上取决于上下文。Salter 先生认为，本案中该义务的相关内容由两个更具体的条款体现，而 Yam Seng 认为这两个条款应被默示在协议中。因此，我转而考虑这两个条款。
A Duty Not to Give False Information? 不提供虚假信息的义务？
The first more specific term said by Yam Seng to be implied in the Agreement is a term that "insofar as [ITC] instructed or encouraged [Yam Seng] to incur marketing expenses it would not do so for products which it was unable or unwilling to supply, nor offer false information on which [Yam Seng] was likely to rely to its detriment." 山成公司认为协议中隐含的第一个更具体的条款是："只要[ITC]指示或鼓励[山成公司]承担营销费用，它就不会为它不能或不愿供应的产品承担营销费用，也不会提供[山成公司]可能依赖而对其不利的虚假信息"。
As I see it, the essential difficulty with this formulation is that it does not distinguish between encouraging expenditure in the expectation that products would be supplied, or providing false information, dishonestly and doing so innocently. In my view, such a distinction is critical. To take the first limb of the alleged implied term, in so far as ITC led Yam Seng to expect that products were going be supplied believing that it would be able to supply them and intending to do so, there would be no lack of good faith on the part of ITC. The position would be different if ITC wilfully led Yam Seng to expect that products would be supplied in circumstances where ITC did not in fact intend to supply them or knew that it would be unable to do so. Conduct of the latter kind would be clearly contrary to standards of commercial dealing which the parties would reasonably have taken for granted; but I can see no basis for implying any more onerous obligation. The same distinction needs to be drawn in relation to the second limb of the alleged implied term. I can see no justification for implying an unqualified obligation not to provide false information - equivalent to a warranty that any information given by ITC on which Yam Seng was likely to rely would be true. By contrast, it was clearly implied that ITC would not knowingly provide false information on which Yam Seng was likely to rely. Such conduct would plainly infringe the core expectation of honesty discussed earlier. 在我看来，这种表述的主要困难在于，它没有区分不诚实地提供产品或提供虚假信 息与无辜地提供产品或提供虚假信息之间的区别。我认为这种区分至关重要。就指称的默示条款的第一部分而言，只要国贸中心让阎生预期会有产品供应，相信它能够供应产品并打算这样做，国贸中心就不存在缺乏诚意的问题。如果国贸中心故意让Yam Seng预期产品将得到供应，而国贸中心实际上并不打算供应这些产品或知道它将无法供应这些产品，情况就不同了。后一种行为显然有悖于商业交易的标准，而双方本应合理地认为这种标准是理所当然的；但我看不出有什么理由暗示要承担更繁重的义务。对于指称的默示条款的第二部分，也需要作出同样的区分。我看不出有任何理由隐含一项不提供虚假信息的无条件义务--相当于保证任成可能依赖的由国际贸易中心提供的任何信息都是真实的。与此相反，该条款明确暗示，国贸中心不会故意提供任成可能依赖的虚假信息。这种行为显然侵犯了前面讨论过的对诚实的核心期望。
A Duty Not to Undercut Duty Free Prices? 不压低免税价格的义务？
The second more specific term which Yam Seng contends was implied in the Agreement is a term that "[ITC] would not prejudice [Yam Seng]'s sales by offering the same products for sale within the same territories at a lower price than [Yam Seng] was permitted to offer." 山成公司认为，协议中隐含的第二个更具体的条款是"[ITC]不会以低于[山成公司]获准提供的价格在同一地区提供相同产品销售，从而损害[山成公司]的销售"。
As pointed out by Mr Eaton Turner, this alleged term as formulated does not accord with the facts, as ITC did not itself make any direct sales in any territory. In particular, in Singapore - which was the focus of Yam Seng's complaint - ITC sold the Manchester United 100ml EDT to a distributor, Kay Ess, which in turn sold the product to retailers for sale to consumers. There is no evidence of the price at which ITC sold the product to Kay Ess. In any case, the price about which Yam Seng complained was not the price paid or charged by Kay Ess but was the retail price in stores. ITC could not directly dictate the retail price. What ITC could do is agree with its distributor, Kay Ess, a recommended retail price for the Singapore domestic market and ask Kay Ess to seek to ensure so far as it could that retailers offered the product for sale at that price. 正如伊顿-特纳先生指出的那样，这一指称的条款与事实不符，因为国际贸易中心本身并没有在任何地区进行任何直接销售。特别是在新加坡--这是 Yam Seng 投诉的重点--ITC 将曼联 100 毫升香水卖给分销商 Kay Ess，后者再将产品卖给零售商，再由零售商卖给消费者。没有证据表明 ITC 向 Kay Ess 出售产品的价格。无论如何，Yam Seng 投诉的价格不是 Kay Ess 支付或收取的价格，而是商店的零售价。国际贸易中心不能直接规定零售价。国际贸易中心可以做的是与其分销商 Kay Ess 商定新加坡国内市场的建议零售价，并要求 Kay Ess 尽可能确保零售商以该价格出售产品。
The highest that the putative implied term could therefore be put is as an obligation not to approve a retail price for any product for any domestic 因此，推定默示条款的最高表述是，有义务不批准任何国内产品的零售价。
market which was lower than the duty free retail price for the product agreed with Yam Seng. 该价格低于与 Yam Seng 公司商定的产品免税零售价。
In ordinary circumstances I would see no justification for implying such a term. The reasonable commercial expectation would be that ITC was free to sell its products to others on such terms as it chose unless it had expressly agreed otherwise with Yam Seng. Three particular contextual features of this case, however, lead me to conclude that there was in fact such an implied term of the Agreement. 在一般情况下，我认为没有理由暗示这样的条款。合理的商业预期是，国贸中心可以按照自己选择的条款自由地向他人出售产品，除非它与阎生公司明确另有协议。然而，本案的三个特定背景特征使我得出结论，该协议实际上存在这样一个隐含条款。
The first is that the Agreement is a skeletal document which does not attempt to specify the parties' obligations in any detail. In relation to such a document it is easier than in the case of a detailed and professionally drafted contract to suppose that a part of the bargain has not been expressly stated. 首先，该协议是一份骨架文件，没有试图详细规定双方的义务。对于这样一份文件，比起一份详细和专业起草的合同，更容易让人认为协议中的某部分内容没有明确说明。
Second, I think it significant that the Agreement (at Clause E) specified the "duty free retail price" for each product. Yam Seng was thus constrained by the Agreement from selling or authorising the sale of any product in duty free outlets at any lower price than the specified duty free retail price. It would be surprising in these circumstances if the parties had intended that ITC should be free to authorise the sale of a product in the domestic market of any territory at a lower price than Yam Seng was permitted by its contract with ITC to sell the same product in duty free. 其次，我认为重要的是，该协议（第 E 条）规定了每种产品的 "免税零售价"。因此，陰生公司受到該協議的限制，不得在免稅店以低於指定免稅零售價的價 格出售或授權出售任何產品。在这种情况下，如果双方有意让国贸中心自由授权在任何地区的国内市场以低于山成公司与国贸中心签订的合同所允许的免税价格销售同一产品，那将是令人惊讶的。
The third and in my view decisive contextual feature is that, as was common ground, the background to the Agreement included an industry assumption that retail prices in domestic markets will be higher than the corresponding duty free retail prices at airports or on board aeroplanes. The parties would reasonably have understood and expected that their obligations would reflect this assumption without needing to spell this out. 第三个，也是我认为具有决定性的背景特征是，《协定》的背景包括一个行业假设， 即国内市场的零售价将高于机场或飞机上的相应免税零售价。双方可以合理地理解并预期其义务将反映这一假设，而无需详细说明。
In my view these matters, taken together, lead to the necessary implication that ITC would not authorise the sale of any product in the domestic market of any territory covered by the Agreement at a lower retail price than the duty free retail price for the product which had been specified in the Agreement with Yam Seng. 我认为，这些事项合在一起，必然意味着国际贸易中心不会授权在该协定所涵盖的任何地区的国内市场上以低于与阎生签订的协定中规定的产品免税零售价的零售价销售任何产品。