An implied duty of good faith in commercial contracts may be more appropriately implied on an ad hoc basis applying the BP Refinery tests, rather than as a legal incident of all commercial contracts. The content of such a duty, if implied, requires a party not to act unreasonably, capriciously, or in pursuit of an ulterior purpose, and not to prevent the performance of the contract or withhold its benefits — but does not require a party to prefer the interests of the other contracting party over its own legitimate interests. Vulnerability of the affected party is a relevant consideration in determining whether to imply such a duty.
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