Dick Broadcasting Company, Inc. of Tennessee v. Oak Ridge FM, Inc.

OPINION

delivered the opinion of the Court,

The legal issues in this appeal revolve around the assignment of three agreements. The first is a Right^of-First>Refusal Agreement that allowed for an assignment with the consent of the non-assigning party. The agreement was silent as to the anticipated standard of conduct of the non-assigning party in withholding consent. The other two agreements — a Time Brokerage Agreement and a Consulting Agreement— were assignable without consent. The primary issue we address is whether the implied covenant of good faith and fair dealing applies to the non-assigning party’s conduct in refusing to consent to an assignment when the agreement does not specify a standard of conduct. Oak Ridge FM, Inc. (“Oak Ridge FM”) contractually agreed for Dick Broadcasting Company (“DBC”) to have a right of first refusal to purchase Oak Ridge FM’s WOKI-FM radio station assets. The agreement was assignable by DBC only with the written consent of Oak Ridge FM. When DBC requested Oak Ridge FM to consent to the assignment of the Right-of-First-Refusal agreement to a prospective buyer, Oak Ridge FM refused to consent. Oak Ridge FM also refused to consent to the assignment of the Consulting Agreement and Time Brokerage Agreement, neither of which contained a consent provision. DBC sued Oak Ridge FM and the other defendants, alleging breach of contract and violation of the implied covenant of good faith and fair dealing. The trial court granted the defendants a summary judgment. DBC appealed, and the Court of Appeals vacated the summary judgment. We hold that where the parties have contracted to allow assignment of an agreement with the consent of the non-assigning party, and the agreement is silent regarding the anticipated standard of conduct in withholding consent, an implied covenant of good faith and fair dealing applies and requires the non-assigning party to act with good faith and in a commercially reasonable manner in *657deciding whether to consent to the assignment. Because there are genuine issues of material fact in dispute, we affirm the judgment of the Court of Appeals and remand to the trial court.

I.

DBC and its related companies were the Federal Communications Commission (“FCC”) licensees for various radio stations, including WIVK, WIVK-FM, and WIOL in Knoxville, Tennessee, and WXVO-FM in Oliver Springs, Tennessee. Oak Ridge FM was the FCC licensee for radio station WOKI-FM in Knoxville. On June 23, 1997, three separate, but related, contracts (collectively “the WOKI-FM Agreements”) were executed relating to WOKI-FM. The first agreement was a Time Brokerage Agreement between DBC and Oak Ridge FM wherein Oak Ridge FM sold substantially all of WOKI-FM’s broadcast time to DBC.1 DBC was required to program the purchased broadcast time to include entertainment, music, news, commercials, and other matters for a period of seven years. The Time Brokerage Agreement was binding on the parties and their “successors and assigns” and contained no limitation on the right of either party to assign the agreement.

The second agreement was a Consulting Agreement between DBC and ComCon Consultants (“ComCon”), a partnership composed of John W. Pirkle and his son Jonathan W. Pirkle, employees at Oak Ridge FM. Under the Consulting Agreement, the Pirkles were paid to serve as consultants to DBC for seven years. The Consulting Agreement was binding on the parties and their “successors and assigns” and contained no limitation on the right of either party to assign the agreement.

The third agreement was a Right-of-First-Refusal Agreement between Oak Ridge FM and DBC that gave DBC the right of first refusal to purchase at a discounted price substantially all of Oak Ridge FM’s assets used in the operation of WOKI. The critical part of the Right-of-First-Refusal Agreement for the purpose of this appeal is the assignment provision, which provides:

This First Refusal Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns, including, without limitation, any assignee of the FCC licenses for [WOKI-FM]. No party may assign its rights, interests or obligations hereunder without the prior written consent of the other party, and any purported assignment without such consent shall be null and void and of no legal force or effect; provided, however, that DBC shall be permitted to assign its rights and obligations under this First Refusal Agreement (1) to an entity controlled by James Allen Dick Jr., or by any one or more of the Dick family shareholders of DBC, or (2) to another entity provided that DBC shall be prevented from performing this First Refusal Agreement and provided that DBC shall guarantee the obligations of such other entity as DBC’s assignee hereunder.

(Underlining in original; italics added).

On April 30, 2000, DBC entered into a written Asset Purchase Agreement with Citadel Broadcasting Company (“Citadel”) selling most of its radio station assets, including its agreements with Oak Ridge FM, for a purchase price of $300,000,000.

On July 18, 2000, DBC sent a letter to Mr. Pirkle as president and principal shareholder of Oak Ridge FM advising *658him “of the pending acquisition” by Citadel of substantially all of DBC’s assets, including the WOKI-FM Agreements, and asking him to consent to the assignment of the Right-of-First-Refusal Agreement. At nearly the same time, Mr. Pirkle, as president of Oak Ridge FM, sent a letter to DBC stating that he had learned of DBC’s proposed deal with Citadel and that none of the agreements — the Time Brokerage Agreement, the Consulting Agreement and the Right-of-First-Refusal Agreement — could be assigned without ComCon’s and Oak Ridge FM’s permission. Mr. Pirkle refused to consent unless they could agree on “an arrangement which satisfies our concerns allowing for the full or partial replacement of DBC with Citadel.” In an affidavit filed in support of the motion for summary judgment, Mr. Pirkle acknowledged that on the advice of counsel he refused to agree to the assignment without additional consideration. His goal was to negotiate a “separate and more profitable agreement with Citadel.”

To close the Citadel sale, DBC maintained that it had to obtain the assignment of all three agreements,2 and therefore DBC continued unsuccessfully to request Mr. Pirkle’s consent. DBC offered to guarantee Citadel’s obligations under the WOKI-FM Agreements, but Mr. Pirkle continued to withhold consent. Eventually DBC finalized the deal with Citadel without the assignment of the agreements and with a $10,000,000 reduction in the sales price.

On March 27, 2001, DBC sued Oak Ridge FM, ComCon, and Mr. Pirkle (“Defendants”), seeking a declaratory judgment that the Time Brokerage Agreement and the Consulting Agreement were assignable by DBC to Citadel without the consent of the Defendants and that Mr. Pirkle, on behalf of Oak Ridge FM, breached the agreements by wrongfully and unreasonably withholding consent to the assignments in order to extract money from the sale to Citadel. DBC further alleged that the implied covenant of good faith and fair dealing applied to the Right-of-First>-Refusal Agreement and that the Defendants breached the agreement by failing to act reasonably and in good faith. The Defendants answered, admitting that Mr. Pirkle refused to consent to the assignment of the agreements but denying any breach of contract on their part.

Both sides filed a motion for summary judgment. Following a hearing on the parties’ competing summary judgment motions, the trial court held that the implied covenant of good faith and fair dealing was not applicable to the Right-of-First-Refusal Agreement and that the Defendants did not breach the agreement. As to the Consulting Agreement, the trial court held that DBC’s interests in this agreement were freely assignable without the Defendants’ consent and that there was a genuine issue of fact regarding whether Mr. Pirkle’s actions in insisting the agreement was not assignable without his consent, and in withholding that consent, were reasonable under the circumstances. The trial court nevertheless granted a summary judgment to the Defendants, stating that it was “unwilling to find that a party may be held liable for a breach of contract for holding out a good faith but mistaken interpretation of a contract provision,” and dismissed the action.

*659DBC appealed. The Court of Appeals vacated the award of summary judgment, holding that the implied covenant of good faith and fair dealing applies to the assignment clause in the Right-of-First-Refusal Agreement and that genuine issues of material fact made the summary judgment improper. Dick Broad. Co. of Tenn. v. Oak Ridge FM, Inc., No. E2010-01685-COA-R3-CV, 2011 WL 4954199, at *11 (Tenn.Ct.App. Oct. 19, 2011). DBC and the Defendants each filed an application for permission to appeal.

We granted both applications primarily to address the following issue: where the parties have contracted to allow assignment of an agreement with the consent of the non-assigning party, and the agreement is silent regarding the anticipated standard of conduct in withholding consent, does the implied covenant of good faith and fair dealing apply to require the non-assigning party to act with good faith and in a commercially reasonable manner in refusing to give its consent for the assignment of the agreement? We hold that the implied covenant of good faith and fair dealing applies to a silent consent clause of an assignment contract provision. When the agreement does not specify the standard of conduct for withholding consent, a party’s decision to refuse consent must be made in good faith and in a commercially reasonable manner. We further hold that the trial court erred in considering Mr. Pirkle’s testimony that he thought he had a contractual right to block DBC’s assignment of the Consulting Agreement by withholding consent based on a discussion with his attorney.

II.

Our task in this case involves the interpretation of a contract. We review issues of contractual interpretation de novo. Perkins v. Metro. Gov’t of Nashville & Davidson Cnty., 380 S.W.3d 73, 80 (Tenn.2012) (citing Allmand v. Pavletic, 292 S.W.3d 618, 624-25 (Tenn.2009)). We are guided by well-settled principles and general rules of construction. “A cardinal rule of contractual interpretation is to ascertain and give effect to the intent of the parties.” Allmand, 292 S.W.3d at 630 (citing Allstate Ins. Co. v. Watson, 195 S.W.3d 609, 611 (Tenn.2006)). We initially determine the parties’ intent by examining the plain and ordinary meaning of the written words that are “contained within the four corners of the contract.” 84 Lumber Co. v. Smith, 356 S.W.3d 380, 383 (Tenn.2011) (citing Kiser v. Wolfe, 353 S.W.3d 741, 747 (Tenn.2011)). The literal meaning of the contract language controls if the language is clear and unambiguous. Allmand, 292 S.W.3d at 630. However, if the terms are ambiguous in that they are “susceptible to more than one reasonable interpretation,” Watson, 195 S.W.3d at 611, we must apply other established rules of construction to aid in determining the contracting parties’ intent. Planters Gin Co. v. Fed. Compress & Warehouse Co., 78 S.W.3d 885, 890 (Tenn.2002). The meaning of the contract becomes a question of fact only if an ambiguity remains after we have applied the appropriate rules of construction. Id. (quoting Smith v. Seaboard Coast Line R.R., 639 F.2d 1235, 1239 (5th Cir. Unit B Mar. 1981 (per curiam))).

The clause in the Right-of-First-Refusal Agreement that is the subject of this controversy states: “[n]o party may assign its rights, interests or obligations hereunder without the prior written consent of the other party.” This is known as a “silent consent” clause because, although it requires consent of the non-assigning party, it is silent regarding the standard of conduct required of a party desiring to refuse consent to a requested assignment. DBC argues that the implied covenant of good faith and fair dealing should apply to *660the silent consent clause to require the non-assigning party to act in good faith and in a commercially reasonable manner in denying consent. The Defendants argue that the silent consent clause should be interpreted to grant the non-assigning party unfettered discretion to deny consent for any or no reason.

Whether the implied covenant of good faith and fair dealing applies to a silent consent clause in an assignment provision of a right of first refusal agreement is an issue of first impression in Tennessee. We hold that the implied covenant of good faith and fair dealing is applicable. Our decision is supported by the established common law of Tennessee and a majority of other jurisdictions.

It is well-established that “[i]n Tennessee, the common law imposes a duty of good faith in the performance of contracts.” Wallace v. Nat’l Bank of Commerce, 938 S.W.2d 684, 686 (Tenn.1996). In Wallace, this Court observed that “[i]t is true that there is implied in every contract a duty of good faith and fair dealing in its performance and enforcement, and a person is presumed to know the law.” Id. (emphasis added) (quoting TSC Indus., Inc. v. Tomlin, 743 S.W.2d 169, 173 (Tenn.Ct.App.1987) (citing Restatement (Second) of Contracts § 205 (1979))). As early as 1922, this Court imposed an implied condition of reasonableness in a contract requiring the sellers of land to find “satisfactory” the price of land sold at auction in order for the auctioneers to be paid a commission. Robeson & Weaver v. Ramsey, 147 Tenn. 25, 245 S.W. 413, 413 (1922). The contractual provision at issue in Robeson & Weaver provided:

It is agreed ... that if the said property does not sell for a price that is satisfactory to the [sellers] that they are to pay to the [auctioneers] all actual and legitimate expenses incurred in putting on said sale, ... but if the sale of said property is confirmed at the price it brought then the [sellers are] to pay the [auctioneers] 5%, five per cent., of the amount the property is sold for.

Id. at 413-14. The land sold at auction for a price “several thousand dollars more” than it was worth, but two of the three sellers did not agree to confirm the sale because they were not satisfied with the price. Id. at 414. The sellers argued that under the express terms of the contract, they had an absolute unfettered right to find the auction price “unsatisfactory” and refuse to confirm the sale. This Court disagreed, holding that where the sales price substantially exceeded the market price, then the price should be considered satisfactory and the sellers would be “capricious” if dissatisfied with it. Id. at 415. The Robeson & Weaver Court concluded that because the farm brought more than its value and an amount that should have satisfied a reasonable person, the auctioneers were entitled to their commission. Id. Thus, where the contract was silent as to the standard of conduct anticipated by the parties in the performance of the agreement, i.e., the sellers providing consent to the sale price as “satisfactory,” the Court rejected a standard allowing the sellers to act capriciously and required them to act in a commercially reasonable manner. Id.; see also German v. Ford, 300 S.W.3d 692, 705 n. 9 (Tenn.Ct.App.2009) (“‘When a contract is contingent on one party’s satisfaction, that party must exercise his or her judgment in good faith and as a reasonable person, when a definite objective test of satisfaction is available; not arbitrarily without bona fide reason for his or her dissatisfaction.’” (quoting 13 Richard A. Lord, Williston on Contracts § 38:24 (4th ed.2000))).

These decisions are in accord with section 205 of the Restatement (Second) of *661Contracts (1979), which provides that “[e]very contract imposes upon each party a duty of good faith and fair dealing in its performance and its enforcement.” (Emphasis added); accord Wallace, 938 S.W.2d at 686; Elliott v. Elliott, 149 S.W.3d 77, 84-85 (Tenn.Ct.App.2004); TSC Indus., 743 S.W.2d at 173; Covington v. Robinson, 723 S.W.2d 643, 645 (Tenn.Ct.App.1986).3 Tennessee courts have consistently applied the principle that Tennessee law recognizes an implied covenant of good faith and fair dealing in every contract. Lamar Adven Co., 313 S.W.3d at 791 (“In Tennessee, a duty of good faith and fair dealing is imposed in the performance and enforcement of every contract.”); Jones v. Le-Moyne-Owen College, 308 S.W.3d 894, 907 (Tenn.Ct.App.2009) (“[E]very contract contains an implied covenant of good faith and fair dealing_”); German, 300 S.W.3d at 706 (“[E]very contract imposes on the parties a duty of good faith and fair dealing in its performance.”); Long v. McAllister-Long, 221 S.W.3d 1, 9 (Tenn.Ct.App.2006) (“A marital dissolution agreement, like any other contract, contains an implied covenant of good faith and fair dealing both in the performance and in the interpretation of the contract.”).4

In some cases, the courts have expressed this principle as allowing the qualifying word “reasonable” and its equivalent “reasonably” to be read into every contract. Pylant v. Spivey, 174 S.W.3d 143, 152 (Tenn.Ct.App.2003) (quoting Moore v. Moore, 603 S.W.2d 736, 739 (Tenn.Ct.App. 1980)); see Hathaway v. Hathaway, 98 S.W.3d 675, 678-79 (Tenn.Ct.App.2002) (“[I]t is well settled that [a] qualifying word which must be read into every contract is the word ‘reasonable’ or its equivalent ‘reasonably.’ ” (quoting Minor v. Minor, 863 S.W.2d 51, 54 (Tenn.Ct.App. 1993))); Hurley, 922 S.W.2d at 892 (quoting Moore, 603 S.W.2d at 739). Our courts have consistently imposed the implied covenant of good faith and fair dealing upon every contract. In no case or authority cited herein has the court found an exception to the all-inclusive term “every.” The word “every” has been defined as “being each individual or part of a group without exception.” Webster’s Ninth New Collegiate Dictionary 430 (1986).

Learned commentators and treatises confirm that these principles of Tennessee contract law generally conform to established and accepted contract law principles *662in other American jurisdictions. See 17A C.J.S. Contracts § 437 (2011) (“Absent an express disavowal by the parties, every contract, whether oral or written, generally contains an implied covenant or duty of good faith and fair dealing in its performance and enforcement.” (footnotes omitted)); 17A Am.Jur.2d Contracts § 370 (2004) (“Generally, there is an implied covenant of good faith and fair dealing in every contract, whereby neither party shall do anything which will have the effect of destroying or injuring the right of the other party to receive the fruits of the contract.” (footnotes omitted)); 23 Richard A. Lord, Williston on Contracts § 63:22 (4th ed.2002) (“Every contract imposes an obligation of good faith and fair dealing between the parties in its performance and its enforcement, and if ... not expressed by its terms in the contract, it will be implied.” (footnotes omitted)).

The United States District Court for the Western District of Tennessee, facing a similar issue, applied Tennessee law and imposed a reasonableness requirement upon contractual provisions requiring consent to an assignment where the agreement did not provide for the standard of conduct for withholding consent. Town & Country Equip., Inc. v. Deere & Co., 133 F.Supp.2d 665, 670 (W.D.Tenn.2000). In Town & Country, an owner of a dealership authorized to sell John Deere products sued and alleged that Deere had breached their agreement by unreasonably withholding approval of the sale of the dealership to anyone but Deere’s preferred buyer. Id. The parties’ agreement provided that the dealer could assign the agreement only with the prior written consent of Deere. Id. The district court, citing the implied duty of good faith and fair dealing under Tennessee law, id. at 668, concluded that Deere did not have the right to “unreasonably limit or interfere with the sale.” Id. at 670. The plaintiff, Town & Country, also alleged breach of another silent consent provision, that “Deere breached the dealer agreement by unreasonably rejecting its proposal to relocate the business,” id. at 669, and the court rejected arguments echoing those made by the Defendants in the present case:

Deere, however, argues that it had an absolute contractual right to withhold its approval of any relocation, for any reason. This is not borne out by the express terms of the agreement, which provides only that the dealer may not operate the business at any other location without prior written approval of the Company. Relocation without prior approval is grounds for immediate cancellation of the agreement. Nothing in the agreement suggests that Deere may withhold that approval unreasonably.

Id. (citations omitted). The Town & Country court, finding genuine issues of material fact regarding whether Deere acted reasonably in denying Town & Country’s request to relocate and whether Deere unreasonably limited or interfered with Town & Country’s efforts to sell the dealership by assigning the agreement, denied summary judgment on these issues. Id. at 673.

Courts in numerous other jurisdictions have similarly held that a clause requiring consent to the assignment of an agreement, if silent regarding the circumstances under which consent may be withheld, is interpreted in accordance with the implied covenant of good faith and fair dealing to require the exercise of reasonableness and good faith in deciding whether to consent to the assignment. In Prince v. Elm Investment Co., 649 P.2d 820, 824 (Utah 1982), a tenant, the holder of a right of first refusal to purchase the leased property, alleged a violation of the duty of good faith and fair dealing when the seller executed a partnership agreement that *663amounted to a sale of the property without notice to the tenant and refused to allow the tenant an opportunity to match the offer. The Utah Supreme Court vacated the summary judgment, finding a genuine issue of material fact regarding whether the seller acted in good faith, reasoning as follows: “[w]here a contract provides that the matter of approval of performance is reserved to a party, he must act fairly and in good faith in exercising that right. He has no right to withhold arbitrarily his approval; there must be a reasonable justification for doing so.” Id. at 825 (citations omitted) (internal quotation marks omitted); see also Larese v. Creamland Dairies, Inc., 767 F.2d 716, 717-18 (10th Cir.1985) (applying Colorado law to hold that franchisor may not act unreasonably or arbitrarily in withholding consent to transfer franchise rights); Homa-Goff Interiors, Inc. v. Cowden, 350 So.2d 1035, 1038 (Ala.1977) (“[E]ven where the lease provides an approval clause, a landlord may not unreasonably and capriciously withhold his consent to a sublease agreement.”); Hendrickson v. Freericks, 620 P.2d 205, 211 (Alaska 1980) (“Where the lessor’s consent is required before an assignment can be made, he may withhold his consent only where he has reasonable grounds to do so.”); Tucson Med. Ctr. v. Zoslow, 147 Ariz. 612, 712 P.2d 459, 461 (Ct.App.1985) (following the “growing number of cases [that] have rejected the right of the landlord to arbitrarily refuse his consent and have held that the lessor must act reasonably in withholding his consent”); Warmack v. Merchs. Nat’l Bank of Fort Smith, 272 Ark. 166, 612 S.W.2d 733, 735 (1981) (holding that a silent consent “provision in a lease should not permit a landlord to unreasonably withhold consent”); Kendall v. Ernest Pestana, Inc., 40 Cal.3d 488, 220 Cal.Rptr. 818, 709 P.2d 837, 845 (1985) (holding where “the lessor retains the discretionary power to approve or disapprove an assign-ee proposed by the other party to the contract!,] this discretionary power should ... be exercised in accordance with commercially reasonable standards”); Cafeteria Operators L.P. v. AMCAP/Denver Ltd. P’ship, 972 P.2d 276, 278-79 (Colo.App.1998) (holding that “without a freely negotiated provision in the lease giving the landlord an absolute right to withhold consent, a landlord’s decision to withhold consent must be reasonable ”); Basnett v. Vista Vill. Mobile Home Park, 699 P.2d 1343, 1346 (Colo.App.1984) (holding landlord may not unreasonably refuse consent under silent consent clause because that result “incorporates the principles of fair-dealing and reasonableness and also preserves freedom of contract”), rev’d on other grounds, 731 P.2d 700 (Colo.1987); Warner v. Konover, 210 Conn. 150, 553 A.2d 1138, 1140-41 (Conn.1989) (“[W]e hold that a landlord who contractually retains the discretion to withhold its consent to the assignment of a tenant’s lease must exercise that discretion in a manner consistent with good faith and fair dealing.”); Fernandez v. Vazquez, 397 So.2d 1171, 1174 (Fla.Dist.Ct.App.1981) (“[W]e hold that a lessor may not arbitrarily refuse consent to an assignment of a commercial lease which provides, even without limiting language, that a lessee shall not assign or sublease the premises without the written consent of the lessor.”); Cheney v. Jemmett, 107 Idaho 829, 693 P.2d 1031, 1034 (1984) (in construing contract to sell real estate, “the interpretation of a non-assignment clause conditioned on the consent of the seller ... necessarily implies that the seller will act reasonably and in good faith in exercising his right of approval”); Funk v. Funk, 102 Idaho 521, 633 P.2d 586, 589 (1981) (“[N]o desirable public policy is served by upholding a landlord’s arbitrary refusal of consent merely because of whim or caprice.... ”); Jack Frost Sales, Inc. v. *664Harris Trust & Sav. Bank, 104 Ill.App.3d 933, 60 Ill.Dec. 703, 433 N.E.2d 941, 949 (1982) (“[W]here a lease forbids any sublease or assignment without the consent of the lessor, the lessor cannot unreasonably withhold his consent to a sublease.”); Gamble v. New Orleans Housing Mart, Inc., 154 So.2d 625, 627 (La.Ct.App.1963) (Under a silent consent clause, “the lessor cannot unreasonably, arbitrarily or capriciously withhold his consent”); Julian v. Christopher, 320 Md. 1, 575 A.2d 735, 739 (1990) (“When the lease gives the landlord the right to exercise discretion, the discretion should be exercised in good faith, and in accordance with fair dealing; if the lease does not spell out any standard for withholding consent, then the implied covenant of good faith and fair dealing should imply a reasonableness standard.”); Newman v. Hinky Dinky Omaha-Lincoln, Inc., 229 Neb. 382, 427 N.W.2d 50, 55 (1988) (under silent consent clause, landlord may refuse consent to assignment of lease “only when the lessor has a good faith and reasonable objection to assignment of the lease or subletting”); Boss Barbara, Inc. v. Newbill, 97 N.M. 239, 638 P.2d 1084, 1086 (1982) (“No logical reason exists for not requiring good faith” in construing silent consent clause); Littlejohn v. Parrish, 163 Ohio App.3d 456, 839 N.E.2d 49, 50, 52-53 (2005) (applying good faith doctrine to mortgage prepayment clause “subject to the mortgagee’s approval”); Pac. First Bank v. New Morgan Park Corp., 319 Or. 342, 876 P.2d 761, 767 (1994) (applying good faith doctrine to silent consent clause).

Most, but not all,5 of the cases we have cited that apply the implied covenant of good faith and fair dealing involve the construction of a lease and a landlord’s decision to consent to a tenant’s request to sublease the property. However, we do not find the reasoning of these opinions any less persuasive in the context of the particular issue presented here simply because they involve the assignment of a leasehold interest. “The legal effect of the terms of a lease are governed by the general rules of contract construction ]” as in any other contract. Planters Gin Co., 78 S.W.3d at 889; see also Cali-Ken Petroleum Co. v. Slaven, 754 S.W.2d 64, 65 (Tenn.Ct.App.1988) (“Like any other contract, a[ ] ... lease should be interpreted using the commonly accepted rules of construction.”); cf. Lamar Adver. Co., 313 5.W.3d at 791-92 (applying general contract interpretation principles, including duty of good faith and fair dealing, to lease agreement).6 Moreover, both the issue and the pertinent considerations are the same in the case of the construction of a silent consent clause in an assignment provision in a lease agreement as in other types of contracts. In each case, the parties have agreed that a contractual right or set of rights shall be assignable only with the consent of the non-assigning party but have not expressly agreed on the standard of conduct anticipated in withholding consent.

*665The Defendants argue that the position adopted by the courts in other jurisdictions cited and discussed above represents an unpersuasive “minority rule” and that a majority of the courts considering the silent consent clause issue have applied the traditional common law view that parties asked to consent to assignment may refuse arbitrarily or unreasonably refuse. See generally James C. McLoughlin, Annotation, When Lessor May Withhold Consent Under Unqualified Provision in Lease Prohibiting Assignment or Subletting of Leased Premises Without Lessor’s Consent, 21 A.L.R.4th 188 (1983). Our research indicates that the former “majority rule” approach has steadily eroded over time and is now a minority position among the courts that have considered the issue. In 1977, the Alabama Supreme Court noted that although “[t]he general rule throughout the country has been that, when a lease contains an approval clause, the landlord may arbitrarily and capriciously reject proposed subtenants,” the rule “has been under steady attack in several states in the past twenty years.” Homa-Goff Interiors, 350 So.2d at 1037; see also Tucson Med. Ctr., 712 P.2d at 461 (“A growing number of cases have rejected the right of the landlord to arbitrarily refuse his consent and have held that the lessor must act reasonably in "withholding his consent.”); Fernandez, 397 So.2d at 1173 (“The arbitrary and capricious rule is undergoing continued erosion. An increasing number of jurisdictions” are adopting the rule of reasonableness and fair dealing); Alex M. Johnson, Jr., Correctly Interpreting Long-Term Leases Pursuant to Modem Contract Law: Toward a Theory of Relational Leases, 74 Va. L.Rev. 751, 753 (1988) (noting “the rapidly expanding list of state courts that have rejected the property rules on alien-ability of leaseholds and, by applying contract principles, have limited the lessor’s right to restrict alienation arbitrarily”).

Currently, some fourteen jurisdictions— Delaware,7 Georgia,8 Indiana,9 Kentucky,10 Massachusetts,11 Michigan,12 Minnesota,13 New Hampshire,14 New Jersey,15 New York,16 North Carolina,17 South Carolina,18 *666Vermont,19 and Washington20 — continue to adhere to the older common law view that a landlord may arbitrarily or unreasonably refuse to consent under a silent consent clause in a lease’s anti-assignment provision. Seventeen jurisdictions have adopted the “modern” position discussed above, imposing an implied duty of good faith and fair dealing in interpreting a silent consent clause.21

The Defendants argue that the trial court was correct in finding that the Right-of-First-Refusal Agreement was unambiguous and complete and holding that to interpret the contract in accordance with the implied covenant of good faith and fair dealing “would be in effect to add a new provision to the contract which the parties were free to add themselves.” We disagree. It is true that “the common law duty of good faith does not extend beyond the agreed upon terms of the contract and the reasonable contractual expectations of the parties.” Wallace, 938 S.W.2d at 687. Moreover, “‘[t]he implied obligation of good faith and fair dealing does not ... create new contractual rights or obligations, nor can it be used to circumvent or alter the specific terms of the pa