Nigerian Law Of Contract By Sagay Pdf Free –
the obligation of good faith in one hand and freedom of contract on the other can of course be inconsistent. it is true that the courts are reluctant to interfere with the freedom of parties to make an agreement. the truth is that the party to a contract can do much to avoid it by its own actions. for example, when speaking of good faith, the chief purpose of the concept is to provide guidance by implying principles which justify the expectation of the parties that a reasonable performance would be expected. it is for this reason that good faith has been construed as a gap-filler or a bridging concept that ensures contract rights are protected. it is a concept of the parties discretion and not a pre-supposed rule of law. it is not as a rule of law that the freedom of contract can be construed. if anything, it is a concept of the parties discretion that the freedom of contract can be qualified if either party to the contract is dishonestly to perform his or her obligation under the contract.
the next question to be answered is whether the alleged infractions of the immigration act by the appellants company can or should have any bearing on the contracts. in the first place, the contract at bar is a contract of employment. with this, we have a contract of hiring and not a contract to bring into existence. in the federal republic of nigeria, as in other parts of the world, there is no right of employment by contract. the status of employment is achieved by operation of law and an employment contract is not necessary to invoke the operation of such law. in a contract of hiring an employee an employer makes an offer which an employee accepts by commencing employment. according to the statutory provision of the immigration act, the employment contract is the right of an employer to hire an employee and the employment contract between the parties is governed by the act. on the other hand, an individual is not an employer or a principal in an employment contract because the individual is not the employer and the contract is not between the individual and the employee. the right of the individual to hire the services of an individual does not arise in the absence of a contract between the individual and the individual he seeks to hire. the fact that the employer is a company does not alter the relationship between the employer and the individual. an individual is not a principal in an employment contract with a company.  in relation to any violation of a statutory provision, i believe that the question of whether it affects the contract or the employment relationship is critical. only where a violation affects the contract can it be said to violate the terms of the employment contract. if a company has violated a provision of the immigration act and the employee took advantage of the company conduct to secure employment, the employer cannot complain about the illegality of the employment contract provided it did not know and could not have ascertained that the employment contract would be secured through an infraction of the immigration act. at best, the employer can only avoid the illegal act by not offering the employment contract to the individual. if the contract is illegal, the employer can neither enforce nor be entitled to an order of discharge or suspension of the individual from the job.
Another useful description of the duty of good faith is provided by Dennis Nilges in his classic work on contract law. According to Nilges, the duty of good faith, because of its subjective nature, can only be delineated in terms of a covenant or fiduciary duty, by which specific conduct is said to offend in terms of its objective requirements or the personal morality of the parties to the contract.  Historically, the concept of good faith in England was denoted by covenant. This was later abbreviated to good faith. The courts have drawn a distinction between the agreement of the parties and their covenant, where the latter embodies a fiduciary duty and requires the consent of the other party. While the parties to a contract are free to draw on legal rules to discharge their obligation, the covenant is often governed by the morality of the parties.
A duty of good faith can be breached when a party shows bad faith or makes an intentional act or omission which has the effect of thwarting or undermining the objective purposes of the contract. While good faith is a vague term, it is sufficient if it represents an honest purpose on the part of the party in interest.  In other words, the courts will interpret good faith to mean the absence of bad faith or reprehensible behaviour.  The courts recognize that in normal commercial contracts, where one party makes unilateral commitments with the expectation of the other party to perform on the basis of the contract, good faith is interpreted under the basic duty of fair dealing and generally revolves around the obligation to act in good faith in the main and reasonable.