325 . Breach of Implied Covenant of Good Faith and Fair
Dealing - Essential Factual Elements
In every contract or agr eement there is an implied pr omise of good faith
and fair dealing. This implied promise means that each party will not do
anything to unfairly interfere with the right of any other party to receive
the benefits of the contract. Good faith means honesty of purpose
without any intention to mislead or to take unfair advantage of another .
Generally speaking, it means being faithful to one’ s duty or obligation.
However , the implied promise of good faith and fair dealing cannot
create obligations that ar e inconsistent with the terms of the contract.
[ Name of plaintiff ] claims that [ name of defendant ] violated the duty to act
fairly and in good faith. T o establish this claim, [ name of plaintiff ] must
prove all of the following:
1. That [ name of plaintiff ] and [ name of defendant ] entered into a
[2. That [ name of plaintiff ] did all, or substantially all of the
significant things that the contract required [him/her/ nonbinary
pronoun /it] to do [or that [he/she/ nonbinary pronoun /it] was
excused from having to do those things;]
[3. That all conditions required for [ name of defendant ]’s
performance [had occurred/ [or] were excused];]
4. That [ name of defendant ] [ specify conduct that plaintiff claims
prevented plaintiff from receiving the benefits under the contract ];
5. That by doing so, [ name of defendant ] did not act fairly and in
good faith; and
6. That [ name of plaintiff ] was harmed by [ name of defendant ]’s
New April 2004; Revised June 201 1, December 2012, June 2014, November 2019,
Directions for Use
This instruction should be given if the plaintif f has brought a separate count for
breach of the covenant of good faith and fair dealing. It may be given in addition to
CACI No. 303, Br each of Contract - Essential Factual Elements , if breach of
contract on other grounds is also alleged.
Include element 2 if the plaintif f’ s substantial performance of contract requirements
is at issue. Include element 3 if the contract contains conditions precedent that must
occur before the defendant is required to perform. For discussion of element 3, see
the Directions for Use to CACI No. 303.
In element 4, insert an explanation of the defendant’ s conduct that violated the duty
to act in good faith.
If a claim for breach of the implied covenant does nothing more than allege a mere
contract breach and, relying on the same alleged acts, simply seeks the same
damages or other relief already claimed in a contract cause of action, it may be
disregarded as superfluous because no additional claim is actually stated. ( Car eau &
Co. v . Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1395 [272
Cal.Rptr . 387].) The harm alleged in element 6 may produce contract damages that
are dif ferent from those claimed for breach of the express contract provisions. (See
Digerati Holdings, LLC v . Y oung Money Entertainment, LLC (201 1) 194
Cal.App.4th 873, 885 [123 Cal.Rptr .3d 736] [noting that gravamen of the two claims
rests on dif ferent facts and dif ferent harm].)
It has been noted that one may bring a claim for breach of the implied covenant
without also bringing a claim for breach of other contract terms. (See Car eau &
Co., supra , 222 Cal.App.3d at p. 1395.) Thus it would seem that a jury should be
able to find a breach of the implied covenant even if it finds for the defendant on all
other breach of contract claims.
Sources and Authority
• “There is an implied covenant of good faith and fair dealing in every contract
that neither party will do anything which will injure the right of the other to
receive the benefits of the agreement.” ( Comunale v . T raders & General Ins. Co.
(1958) 50 Cal.2d 654, 658 [328 P .2d 198], internal citation omitted.)
• “ ‘ “Every contract imposes upon each party a duty of good faith and fair
dealing in its performance and its enforcement.” ’ [] The covenant of good faith
finds particular application in situations where one party is invested with a
discretionary power af fecting the rights of another . Such power must be
exercised in good faith.” ( Carma Developers (Cal.), Inc. v . Marathon
Development California, Inc. (1992) 2 Cal.4th 342, 371-372 [6 Cal.Rptr .2d 467,
826 P .2d 710], internal citations omitted.)
• “When one party to a contract retains the unilateral right to amend the
agreement governing the parties’ relationship, its exercise of that right is
constrained by the covenant of good faith and fair dealing which precludes
amendments that operate retroactively to impair accrued rights.” ( Cobb v .
Ir onwood Country Club (2015) 233 Cal.App.4th 960, 963 [183 Cal.Rptr .3d
• “The covenant of good faith and fair dealing, implied by law in every contract,
exists merely to prevent one contracting party from unfairly frustrating the other
party’ s right to receive the benefits of the agreement actually made . The
covenant thus cannot ‘ “ ‘be endowed with an existence independent of its
contractual underpinnings.’ ” ’ It cannot impose substantive duties or limits on
the contracting parties beyond those incorporated in the specific terms of their
CACI No. 325 CONTRACTS
agreement.” ( Guz v . Bechtel National, Inc. (2000) 24 Cal.4th 317, 349-350 [100
Cal.Rptr .2d 352, 8 P .3d 1089], original italics, internal citations omitted.)
• “The implied covenant of good faith and fair dealing cannot be read to require
defendants to take a particular action that is discretionary under the contract
when the contract also expressly grants them the discretion to take a dif ferent
action. T o apply the covenant to requir e a party to take one of two alternative
actions expressly allowed by the contract and forgo the other would contravene
the rule that the implied covenant of good faith and fair dealing may not be
‘read to prohibit a party from doing that which is expressly permitted by an
agreement.’ ” ( Bevis v . T errace V iew Partners, LP (2019) 33 Cal.App.5th 230,
256 [244 Cal.Rptr .3d 797], original italics.)
• “The implied covenant of good faith and fair dealing rests upon the existence of
some specific contractual obligation. ‘The covenant of good faith is read into
contracts in order to protect the express covenants or promises of the contract,
not to protect some general public policy interest not directly tied to the
contract’ s purpose.’ . . . ‘In essence, the covenant is implied as a supplement to
the express contractual covenants, to prevent a contracting party from engaging
in conduct which (while not technically transgressing the express covenants)
frustrates the other party’ s rights to the benefits of the contract.’ ” ( Racine &
Laramie, Ltd. v . Department of Parks & Recreation (1992) 1 1 Cal.App.4th 1026,
1031-1032 [14 Cal.Rptr .2d 335], internal citations omitted.)
• “There is no obligation to deal fairly or in good faith absent an existing contract.
If there exists a contractual relationship between the parties . . . the implied
covenant is limited to assuring compliance with the express terms of the
contract, and cannot be extended to create obligations not contemplated in the
contract.” ( Racine & Laramie, Ltd., supra, 1 1 Cal.App.4th at p. 1032, internal
citations omitted.)
• “Although breach of the implied covenant often is pleaded as a separate count, a
breach of the implied covenant is necessarily a breach of contract.” ( Digerati
Holdings, LLC, supra , 194 Cal.App.4th at p. 885.)
• “ ‘[B]reach of a specific provision of the contract is not . . . necessary’ to a
claim for breach of the implied covenant of good faith and fair dealing.” ( Thrifty
Payless, Inc. v . The Americana at Brand, LLC (2013) 218 Cal.App.4th 1230,
1244 [160 Cal.Rptr .3d 718].)
• “ ‘It is universally recognized the scope of conduct prohibited by the covenant of
good faith is circumscribed by the purposes and express terms of the contract.’
V iolation of an express provision is not, however , required. ‘Nor is it necessary
that the party’ s conduct be dishonest. Dishonesty presupposes subjective
immorality; the covenant of good faith can be breached for objectively
unreasonable conduct, regardless of the actor ’ s motive.’ ‘A party violates the
covenant if it subjectively lacks belief in the validity of its act or if its conduct
is objectively unreasonable. [Citations.] In the case of a discretionary power , it
has been suggested the covenant requires the party holding such power to
CONTRACTS CACI No. 325
exercise it “for any purpose within the reasonable contemplation of the parties at
the time of formation - to capture opportunities that were preserved upon
entering the contract, interpreted objectively .” ’ [¶] ‘The issue of whether the
implied covenant of good faith and fair dealing has been breached is ordinarily
“a question of fact unless only one inference [can] be drawn from the
evidence.” ’ ” ( Moor e v . W ells Fargo Bank, N.A. (2019) 39 Cal.App.5th 280,
291-292 [251 Cal.Rptr .3d 779], internal citations omitted.)
• “If the allegations do not go beyond the statement of a mere contract breach and,
relying on the same alleged acts, simply seek the same damages or other relief
already claimed in a companion contract cause of action, they may be
disregarded as superfluous as no additional claim is actually stated. Thus, absent
those limited cases where a breach of a consensual contract term is not claimed
or alleged, the only justification for asserting a separate cause of action for
breach of the implied covenant is to obtain a tort recovery .” ( Car eau & Co.,
supra , 222 Cal.App.3d at p. 1395.)
• “[W]e believe that the gravamen of the two counts dif fers. The gravamen of the
breach of contract count is [cross defendants’] alleged failure to comply with
their express contractual obligations specified in paragraph 37 of the cross-
complaint, while the gravamen of the count for breach of the implied covenant
of good faith and fair dealing is their alleged ef forts to undermine or prevent the
potential sale and distribution of the film, both by informing distributors that the
film was unauthorized and could be subject to future litigation and by seeking an
injunction. ( Digerati Holdings, LLC, supra , 194 Cal. App. 4th at p. 885.)
Secondary Sources
1 W itkin, Summary of California Law (1 1th ed. 2017) Contracts, §§ 822, 824-826
13 California Forms of Pleading and Practice, Ch. 140, Contracts , §§ 140.12, 140.50
et seq. (Matthew Bender)
2 Matthew Bender Practice Guide: California Contract Litigation, Ch. 23, Suing or
Defending Action for Br each of Duty of Good Faith and Fair Dealing , 23.05
CACI No. 325 CONTRACTS
Page last reviewed May 2024
In this two-part series of columns, Touro University, Jacob D. Fuchsberg Law Center professor Rodger D. Citron examines Chief Justice John Roberts’s leadership of the Supreme Court over multiple terms, focusing on his apparent dual objectives of balancing political attunement and advancing conservative ideology.
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