The opposite of "good faith"

Factual Questions
21

Let me just say this. If the OP’s analogy is taken at face value – i.e.- if it really was an insurance or insurance-like obligation that was being contracted, then specific legal obligations would apply to both the broker and the insurer, such as the following:

  1. In the real world, the case of “I don’t know why the insurance company is unable to deliver on their promise” can never legally arise, because you will have a written policy and a claim denial will always make reference to some specific policy conditions(s). Furthermore, you will have several paths for appeal, both through the company and ultimately through the state or provincial regulatory agency. In your case, it sounds like you were dealing with something much more murky and ill-defined, so I’m not sure that the insurance example you gave is really applicable.

  2. Again with reference to your insurance example, if an actual insurance broker had falsely made representations that an insurance policy was in effect when in fact it was not, and billed premiums and service fees for it, then he might be liable for a lot more than just forfeiture of his fees. I would opine that you’re now potentially dealing with reckless incompetence or fraud, and he might be legally liable for the full amount of insured damages that you incurred, and in the process, depending on the circumstances, might even get his license revoked.

But you’ve already said the insurance example was just a made-up analogy, and the circumstances could be substantially different. It may just be a really inappropriate analogy.

So, OP: I’m inclined to suggest that if the monetary amounts involved are non-trivial, there are multiple reasons that you may be best to consult a lawyer who could address the actual facts of the case, rather than trying to navigate this on your own. When you state that “the fact that the broker has already paid is not our problem - cold but true” it suggests that the “broker”, facing a financial loss, might potentially try to turn the tables and sue you for the money he’s out, whereas you might have the legal right not only to refuse to pay him, but to sue for damages. It’s impossible to say without legal expertise AND knowing every last detail of the circumstances.

22

I’m not getting it. Was this broker authorized to contract with an insurance company or did they just make a recommendation? Did the broker make any misrepresentations to your company that you can prove? If your company made the final decision and signed the insurance contract you have no basis for blaming the broker because the insurance plan that*** you chose*** didn’t turn out to be a good one.

23

A relatively minor point. The past tense of the verb “to lead” is led, so this should be “misled.” This is a rather common error these days.

24

Insurance is probably a bad example, because insurers can be bound by the representations of their agents, and in most states a broker is considered the insurer’s agent.

Let me suggest a different example. You hired a company which specializes in home renovation referrals. They will locate a plumber (for example) who is willing to perform a bathroom remodel at a budget specified by you, and you pay them a fee plus the remodel contract price. They pass the plumber’s portion on to him and keep their fee. The plumber then fails to perform the remodel, because it turns out your town requires a special license for plumbers working within its environs, which the plumber cannot obtain because he is a journeyman and the town only licenses masters.

Is that a reasonably close approximation of your case?

25

I really appreciate everyone spending time on this :slight_smile:

And my apologies for my contrivances. It certainly makes discussion difficult. The example in the OP was contrived to set up the “opposite of good faith” linguistic question. It was actually we who acted in good faith. I was trying to express the idea that results made it clear the good faith was not justified because <insert opposite of good faith> happened.

The insurance thing was to introduce the adviser role. It is payment to the adviser we are disputing on the basis they didn’t fulfil their obligation to provide “a plumber that can do the job” (not really a plumber).

The contractor/insurer/plumber in question has utterly failed to deliver any value. This fact is not in dispute. To continue with the plumber example, our broken pipes are in a different country we don’t want to travel to. We don’t know any plumbers there and we can’t keep an eye on the job. We hired someone to give us a plumber we will work with remotely to fix the pipes to our spec. We relied on the plumbing adviser to give us someone who can do the job. Every time we asked the plumber “how’s it going” she said, “just soldering the faucet now” or “just ordered some new copper tubing”.

When we asked for pictures, we got variations on “let me clean up the site first so you’ll get a better picture” or “camera’s broken, ordered a new one” or “I’m off sick in the hospital - gimme a couple days then I’ll send you a picture”.

The point of the OP is we agreed to pay the adviser in good faith. After a period of time where the plumber was paid by the adviser, we are left with the same broken pipes - as if we didn’t have a plumber at all. The adviser is asking for payment. We’re saying, “he’s your guy” We agreed to pay in good faith. We shouldn’t pay because <opposite of good faith> happened. Clearly, given the results, the plumber falsely represented her ability to do this work.

I got what I needed for the wordsmithing part of this thread. We’ve moved onto “who should pay” and again I thank you for the discussion. The sad realization that keeps trying to bubble up during this discussion is we may have to go after the plumber, not the adviser. So be it. We would rather not pay and have the adviser go after the plumber (“you told me you would do the job for them!”).

We also want to avoid damaging the relationship with the adviser. They have always gotten us excellent plumbers before.

ETA: there is wording in the contract with the adviser “plumbers shall in the reasonable opinion of the adviser be qualified to perform their plumbing duties.” This is probably the nail in the coffin in terms of not paying the adviser. They, like us, held the reasonable opinion the plumber was a good one.

26

I get that the plumber, from your account, displayed the opposite of good faith. But nothing you have said suggests that the adviser didn’t act in good faith.

The real issue is whether you or the adviser should bear the losses resulting from the plumber’s default. As far as I can see both you and the adviser acted in good faith, so your own good faith doesn’t give you and edge, so to speak, over the plumber.