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Civil Model Jury Charge 4.10 J. IMPLIED TERMS COVE


In addition to the express terms of a contract, the law provides that every contract contains an implied covenant of good faith and fair dealing.This means that, even though not specifically stated in the contract, it is implied or understood that each party to the contract must act in good faith and deal fairly with the other party in performing or enforcing the terms of the contract.[2]

To act in good faith and deal fairly, a party must act in a way that is honest and faithful to the agreed purposes of the contract and consistent with the reasonable expectations of the parties.[3]A party must not act in bad faith, dishonestly, or with improper motive to destroy or injure the right of the other party to receive the benefits or reasonable expectations of the contract.[4]

There can be no breach of the implied covenant of good faith and fair dealing unless the parties have a contract.[5]Additionally, the implied covenant of good faith and fair dealing may not override an expressly granted right under the contract.For example, an implied covenant of good faith and fair dealing may not override an express provision in the contract giving one party the right to terminate the contract and the partys motive in terminating the contract under such circumstances may be irrelevant.[6]A party must still, however, act in good faith in the performance of the contract until the termination actually takes place.[7]Thus, even though the party complies with the express contract term entitling him to terminate the contract, he may still be in breach of the covenant of good faith and fair dealing if he fails to act in good faith and deal fairly until the contract is actually terminated.

There are many forms of conduct that might constitute a violation of good faith and fair dealing, but each case is fact-sensitive.[8]In order for you to find that there has been a breach of the implied covenant of good faith and fair dealing in this case, the plaintiff must prove to you that the defendant, with no legitimate purpose:1) acted with bad motives or intentions or engaged in deception or evasion in the performance of contract; and 2) by such conduct, denied the plaintiff of the bargain initially intended by the parties.[9]

The plaintiff in this case claims that the defendant breached the implied covenant of good faith and fair dealing by [give brief statement of plaintiffs claim of breach].To prevail on this claim, the plaintiff must prove each of the following three elements by a preponderance of the evidence:

First, the plaintiff must prove that some type of contract existed between the parties.[10]There can be no breach of the covenant of good faith and fair dealing unless the parties have a contract.

Second, the plaintiff must prove that the defendant acted in bad faith with the purpose of depriving the plaintiff of rights or benefits under the contract.

Third, the plaintiff must prove that the defendants conduct caused the plaintiff to suffer injury, damage, loss or harm.I will now discuss each of these elements separately.

Was there a contract between the parties?

You must first determine whether some type of contract existed between the plaintiff and the defendant.[11]

1.Express or Implied Contract

[Instruct the jury on the legal principles that apply to the particular contract.See Model Civil Jury Charge 4.10E.]

If you find that a contract existed between the parties, you must then determine whether the defendant violated the implied covenant of good faith and fair dealing.

Did the defendant act in bad faith with the intent to deprive the plaintiff of rights or benefits under the contract?

As to this element, you must decide whether the defendant acted with bad faith to interfere with the plaintiffs right to receive the benefits of the contract.Proof of bad motive or intention is essential to a claim that the defendant has violated the covenant of good faith and fair dealing.

In considering what constitutes bad faith, you should consider a number of factors, including the expectations of the parties and the purposes for which the contract was made.You should also consider the level of sophistication between the parties, whether the parties had equal or unequal bargaining power, and whether the defendants action involved the exercise of discretion.

Keep in mind, however, that bad faith is not established by simply showing that the defendants motive for his/her actions did not consider the best interests of the plaintiff.Contract law does not require parties to behave thoughtfully, charitably or unselfishly toward each other.[12]

In order for the plaintiff to prevail on his/her claim, you must specifically find that bad faith motivated the defendants actions.A defendant who acts in good faith on an honest, but mistaken, belief that his/her actions were justified has not breached the covenant of good faith and fair dealing.[13]

Whether the defendants conduct caused the plaintiff to suffer injury, damage, loss or harm

The plaintiff must also prove that because of the defendants actions, the plaintiff was unable to realize the benefits of the contract [describe the specific losses alleged by the plaintiff].

In summary, if you find that the plaintiff has proven by a preponderance of the evidence: (1) the existence of some type of contract; (2) that the defendant, although acting consistent with the contracts terms, acted in bad faith with the intent to deprive the plaintiff of his/her reasonable expectations under the contract; and (3) the plaintiff sustained injury or loss as a result of such action, then you must find for the plaintiff.

If you find that the plaintiff has failed to prove any of these elements by the preponderance of the evidence, you must find for the defendant.

[1]See Chapter Two, Employment Law Charges, for model charge regarding the Covenant of Good Faith and Fair Dealing in the context of an employment contract See Charge 2.15.

[2]See Sons of Thunder, Inc. v. Borden, Inc., 148N.J.396 (1997);Pickett v. Lloyds, 131N.J.457, 467 (1993);Onderdonk v. Presbyterian Homes,85N.J. 171, 182 (1981);Bak-A-Lum Corp. v. Alcoa Bldg. Prods. Inc., 69N.J.123, 129-130 (1976);Assn Group Life, Inc. v. Catholic War Veterans, 61N.J.150, 152 (1972);Palisades Properties, Inc. v. Brunetti,44N.J.117, 130 (1965).

[3]TheU.C.C.addresses the issue. Every contract or duty within this Act imposes an obligation of good faith in its performance or enforcement.N.J.S.A. 12A:1-203. Good faith is generally defined as honesty in fact in the conduct or transaction concerned.N.J.S.A.12A:1-201(19). Good faith in the case of a merchant means honesty in fact and the observance of reasonable commercial standards of fair dealing in the trade.N.J.S.A.12A:2-103(b). Although theU.C.C. governed inSons of Thunder, Inc.,supra,the Court stated that the common law duty also influenced the Courts analysis.Sons of Thunder, Inc. v. Borden, Inc., supra, at 420-421.

[4]Brunswick Hills Racquet Club, Inc. v. Route 18 Shopping Center Assoc., 182N.J.at 230-231 (2005);Wilson v. Amerada Hess Corp., 168N.J.236, 251 (2001) (citations omitted);Sons of Thunder, Inc. v. Borden, Inc.,supra,at 420.See alsoWade v. Kessler Institute,172N.J.327 (2002);Palisades Properties, Inc. v. Brunetti, supra, at117.

[5]Wade v. Kessler Institute, supra, at 345 (expressly emphasizing there can be no breach of the implied covenant of good faith and fair dealing in the absence of a contract).

[6]SeeSons of Thunder, Inc. v. Borden, Inc.,supra,at 417 (We agree...that the implied covenant of good faith and fair dealing cannot override an express termination clause);Id.at 423 ([W]here the contractual right to terminate is express and unambiguous, the motive of the terminating party is irrelevant. . . .As stated previously, we agree with that view of the law); see alsoPrudential Stewart Realty v. Sonnenfeldt,285N.J. Super. 106, 110 (App. Div. 1995),certif. denied, 143N.J.(1996) (party does not breach implied duty of good faith and fair dealing, in exercising contractual right to terminate after six months, regardless of partys motives);Karls Sales & Service, Inc. v. Gimbel Bros., Inc., 249N.J. Super. 487, 495 (App. Div. 1991),certif. denied, 127N.J.at 548 (1991).

[7]Sons of Thunder, Inc. v. Borden, Inc.,supra,at 419 (although the duty does not trump an express termination clause, the court still must determine whether ... [party] performed its obligations in good faith.);Id.at 421-424 (party with express termination right must still perform contract in good faith and fairly).

[8]Price v. New Jersey Manufacturers Insurance Company, 182N.J. 519 (2005) (an insurance company, as the dominant party, has an even greater obligation than the insured to act in good faith; it must not put technical encumbrances or hidden pitfalls in the way of unsophisticated customers that would undermine their reasonable expectations.);Silvestri v. Optus Software, Inc., 175N.J.113 (2003) (a subjective standard that governs satisfaction clauses in employment contracts obliges the employer to act honestly in accordance with his duty of good faith and fair dealing, but genuine dissatisfaction of the employer, honestly held, is sufficient for discharge.);Wilson v. Amerada Hess Corp., supra, at 251 (in action by gasoline company franchisees against the franchisor and supplier of gasoline products, the plaintiffs alleged that the defendant had breached the implied covenant of good faith and fair dealing in the performance of the parties contract provision whereby defendant had the unilateral right and discretion to set the price for the gasoline.The Court held that the discretion afforded toHessunder the contract was not unbridled discretion.Rather,Hesss performance is tempered by the implied covenant of good faith and fair dealing and the reasonable expectations of the parties. [A] party exercising its right to use discretion in setting price under a contract breaches the duty of good faith and fair dealing if that party exercises its discretionary authority arbitrarily, unreasonably, or capriciously, with the objective of preventing the other party from receiving its reasonably expected fruits under the contract.);R.J. Gaydos Insurance Agency, Inc. v. National Consumer Insurance Company, 168N.J.255 (2001) (a common law cause of action for breach of the implied duty of good faith and fair dealing cannot be brought when that claim is based solely on allegations that the defendant violated theFair Automobile Insurance Reform Act).

See also,Wood v. New Jersey Manufacturers Insurance Co., 206N.J.562 (2011) (Plaintiff, a mail carrier, filed the underlying personal injury action after she was attacked and seriously injured by the insureds dog.Plaintiff rejected the insurers $300,000 settlement offer, but repeatedly asserted that she would have accepted a settlement near the $500,000 policy limits.Plaintiff, replying onRova Farms Resort, Inc. v. Investors Insurance Co. of America, 65N.J.474 (1974), placed the insurer on notice that if she recovered a verdict in excess of the policy limits, she would look to the insurer for the excess.The trial resulted in a verdict in the Plaintiffs favor in excess of the policy limits.The insureds assigned theirRova Farmsclaim to the Plaintiff and she then brought a declaratory judgment action.The Appellate Division did not reach the issue of the right to a jury trial, leaving it on remand to the discretion of the trial court.The Supreme Court granted certification limited to the question of whether an insureds claims of bad faith are to be decided by a judge or jury.The Supreme Court found that regardless of the label that the Plaintiff put on the action,Rova Farmsbad faith claim was a breach of contract claim and, thus, it was an action at law triable to a jury).

[9]InBrunswick Hills Racquet Club, Inc. v. Route 18 Shopping Center Assoc.,supra, the plaintiff, a tennis club tenant, failed to properly exercise the express terms of an option agreement to purchase the occupied premises from its commercial landlord.Plaintiff sued, alleging that the landlords evasive tactics caused the tenant to lose its option to buy the tennis club under the lease.In finding that the landlord had breached the covenant of good faith and fair dealing, the Supreme Court clarified the proof standards for a breach of good faith and fair dealing claim:Proof of bad motive or intention is vital to an action for breach of the covenant.Id.at 225.The Court also stated that the party claiming a breach must provide evidence sufficient to support a conclusion that the party alleged to have acted in bad faith has engaged in some conduct that denied the benefit of the bargain originally intended by the parties.Id. atWilliston on Contracts, Sec. 63:22.Finally, the Court sets forth a general rule that subterfuges and evasions in the performance of a contract violate the covenant, even if the actor believes his conduct to be justified.Id. atRestatement (Second) of Contracts, Sec. 205, comment d (1981).

[10]For example, the contract could involve the employers obligation to pay commissions, fringe benefits, bonuses, or other compensation.It could also be a contract to employ the individual for a certain period or a contract arising out of an employee handbook.

[11]If the parties agree that a contract existed, the jury should be so instructed.

[12]Wilson v. Amerada Hess Corp., supra, at 251.

[13]Silvestri v. Optus Software, Inc., supra.

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Since 1985, KENNETH VERCAMMEN has worked as a personal injury attorney, working for injury victims and their families. By taking a hard-hitting, aggressive approach toward the insurance companies, KENNETH VERCAMMEN and our co-counsel have consistently obtained outstanding results for many injured clients over the years I am proud to have worked on cases in various capacities, small and large. While obviously prior results cannot guarantee the outcome of future cases, I can guarantee that you case will receive the same degree of dedication and hard work that went into each of these prior cases.

In direct contrast to the hard-hitting approach we take toward the insurance companies is the soft approach we take toward our clients. I am proud of my compassionate staff as I am of the outstanding financial results they have achieved. For many years, I have watched them treat our clients with patience, dignity and respect. I would have it no other way.

Many years ago, I attended a seminar sponsored by the American Bar Association on Law Practice Management. This was to help insure that each of our clients is always treated like a person -- not a file! We recognize that you are innocent victims and that you have placed your trust in us. Please understand that we understand what you are going through. Feel comforted that we are here to help you.

If you retain KENNETH VERCAMMEN to represent you, we will give you the same advice we give each of our clients -- concentrate on your life, you family and your health. We will take care of everything else. Leave all of the work and worry about your legal rights to us. Trust us. Believe in us. Have faith in us as your attorneys. Understand that we will always to do what we believe is best for you and your case. Helping you is our job. In fact, it is our only job -- guiding injury victims like you through one of the most difficult times of your lives, with care and concern -- while fighting aggressively to the limits of the law to obtain compensation and justice for each of you!

Print our Personal Injury Questionnaire on our Website, Fill it out and Fax back, so we can determine if we can help you obtain an injury settlement. We would welcome an opportunity to prove to you what we have proven to thousands of injured clients -- that you can feel comfortable and secure in the fact that KENNETH VERCAMMEN - Trial Attorney We Fight To Win.

When you have been injured in an accident or collision, you are worried about who is going to pay your medical bills, lost wages, and other damages. The last thing you want is to be taken advantage of by an insurance company. If you dont protect your rights, you may not be able to make a claim.

Insurance companies have attorneys and adjusters whose goal is to pay you as little as they can. You need a New Jersey personal injury lawyer to fight for you. I am dedicated to helping your recover as much money as possible under the law.

You need an attorney who will work hard to protect your rights, maximize your insurance settlement and minimize the hassles of dealing with the insurance companies. You need an experienced and aggressive New Jersey trial lawyer with PROVEN RESULTS who will fight for you. Having an experienced personal injury lawyer can make the difference between getting what you deserve and getting nothing.

Without the threat of a lawyer who is willing to go to trial and seek a big jury verdict, why would an insurance company pay you what your claim is really worth? Lawsuits can be expensive, and many people do not have the money to pursue their claim. In every case, I advance all costs associated with pursuing your case and I do not ask you for a penny until we recover from the other side.

I am an experienced aggressive trial lawyer and a 3rd degree Black Belt. I am not afraid to take your case to trial if that is what it takes to maximize the amount of money your recover for your personal injury. I offer one-on-one service, and I will not hand your case off to an inexperienced lawyer or a paralegal.

Reduce the stress of making a claim.

Personal injury accidents can turn your life upside down. Making a personal injury claim can be difficult and time consuming. Once I take your case, you can stop worrying about dealing with the insurance companies and focus on recovering from your injuries. I take care of all of the paperwork, phone calls, and negotiations, so you can get on with your life.

p.s. For those clients who are afraid or reluctant to go to Court, KENNETH VERCAMMEN also offers a special -- For Settlement Only -- program. This means that if we are unable to settle with the insurance company, we will not go any further -- unless you want us to. You have my personal assurance that there will be absolutely no pressure and no obligation.

We handle personal injury cases on a contingency fee basis.


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Kenneth A. Vercammen is the Managing Attorney at Kenneth Vercammen & Associates in Edison, NJ. He is a New Jersey trial attorney has devoted a substantial portion of his professional time to the preparation and trial of litigated matters. He has appeared in Courts throughout New Jersey each week on personal injury matters, Criminal /Municipal Court trials, and contested Probate hearings.

Mr. Vercammen has published over 125 legal articles in national and New Jersey publications on criminal, elder law, probate and litigation topics. He is a highly regarded lecturer on litigation issues for the American Bar Association, NJ ICLE, New Jersey State Bar Association and Middlesex County Bar Association. His articles have been published in noted publications included New Jersey Law Journal, ABA Law Practice Management Magazine, and New Jersey Lawyer. He is the Editor in Chief of the American Bar Association Tort and Insurance Committee Newsletter.

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