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Wilful default: Difference between revisions
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Whereas “[[negligence]]” and “[[fraud]]” are terms of forensic ''science'' — the former hailing from the common law of [[tort]], being the failure to observe the standards of the [[Reasonable person|sort of fellow one might encounter]] on the [[Man on the Clapham Omnibus|Clapham omnibus]]; the latter hailing from criminal law<ref>Interestingly, the there is no [[tort|''tort'']] of fraud; it is called “[[deceit]]” and was ably summarised in {{casenote1|The Kriti Palm|2006|EWCACiv|1601}} as follows: “The elements of the tort of [[deceit]] are well known. In essence they require (1) a representation, which is (2) false, (3) dishonestly made, and (4) intended to be relied on and in fact relied on.”</ref> and involving a false representation, knowingly made, with the intent to profit from it — “[[wilful default]]” has no such lineage, and is wanting even as a work of legal ''art''. | Whereas “[[negligence]]” and “[[fraud]]” are terms of forensic ''science'' — the former hailing from the common law of [[tort]], being the failure to observe the standards of the [[Reasonable person|sort of fellow one might encounter]] on the [[Man on the Clapham Omnibus|Clapham omnibus]]; the latter hailing from criminal law<ref>Interestingly, the there is no [[tort|''tort'']] of fraud; it is called “[[deceit]]” and was ably summarised in {{casenote1|The Kriti Palm|2006|EWCACiv|1601}} as follows: “The elements of the tort of [[deceit]] are well known. In essence they require (1) a representation, which is (2) false, (3) dishonestly made, and (4) intended to be relied on and in fact relied on.”</ref> and involving a false representation, knowingly made, with the intent to profit from it — “[[wilful default]]” has no such lineage, and is wanting even as a work of legal ''art''. | ||
===Contractual [[definitions]]=== | |||
Thus you do see earnest legal eagles trying to define it. Most such efforts wind up in an untidy tautological heap — “any wilful failure to comply with or wilful breach of any of its obligations under this deed” sort of thing — but some do try to break the usual vicious circle: | |||
{{quote|"Wilful Default" means a deliberate act or omission which will result in (and can reasonably be expected to have been intended to result in) a breach of this Agreement and which, as soon as practicable, but in any event within 30 days after written notice (particularising the alleged breach) is given to the party alleged to be in default, is not either: | |||
(a) acknowledged by the defaulting party and rectified; or | |||
(b) disputed by the party allegedly in default and referred to dispute resolution in accordance with clause 15, but if the notice of default is ultimately determined by arbitration or order of a court or agreement to have been justified, then rectified as soon as practicable but in any event within 30 days of the adjudication or agreement.}} | |||
I mean [[negotiation oubliette]] alert, right? | |||
===Authority=== | |||
The British courts, as a literary phenomenon, are unrivaled among the judiciaries of the modern world, but every now and then even they will execute a long, raking spiral punt into touch on the far side of the paddock. In ''Re Young and Harston’s Contract'', as long ago as 1885, Lord Justice Bowen took it waist high on his 22 and explained that “wilful” generally “implies nothing blamable, but merely that the person of whose action or default the expression it used, is a free agent, and that what has been done arises from the spontaneous action of his will”, and “default” means “nothing more, nothing less, than not doing what is reasonable under the circumstances” or “not doing something which you ought to do.” | |||
Perhaps realising this wasn’t really enlightening anyone, and to ensure the ball found the touch he had aimed it at, he concluded “wilful default” ''not'' to be a term of art, despite its common use in commercial contracts, and that an attempt comprehensively define it would be “a delusion and an idle pursuit”. | |||
So that’s that sorted then. | |||
===Analysis=== | |||
Now for those of you rumbling up the park for the line-out, allow this crusty old fool to rush in where the irascible Lord Justice could not bring himself to tread. “Wilful default” is a silly phrase. So is “wilful misconduct”. In the limited sense in which such things are ever called for in a contract, there is a much better expression than either. | |||
The “default” part suggests a ''contractual'' breach, but we feel there are better words for that kind of thing — “breach”, for example — but in any case the wilfulness, wantonness or licentiousness of those who misperform their contracts has never been of much interest to those who sit on the [[Queen’s Bench Division]]: what matters is ''that'' there is a breach. If there is, the responsible fellow is for for the same high-jump regardless of how obstreperous her frame of mind may have been when she did, or didn’t, do what she shouldn’t, or should, have done. | The “default” part suggests a ''contractual'' breach, but we feel there are better words for that kind of thing — “breach”, for example — but in any case the wilfulness, wantonness or licentiousness of those who misperform their contracts has never been of much interest to those who sit on the [[Queen’s Bench Division]]: what matters is ''that'' there is a breach. If there is, the responsible fellow is for for the same high-jump regardless of how obstreperous her frame of mind may have been when she did, or didn’t, do what she shouldn’t, or should, have done. | ||
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You indemnify me for losses I incur in performing this contract except where those losses arise from my [[negligence]] (''okay''), [[fraud]] (''okay''), or — | You indemnify me for losses I incur in performing this contract except where those losses arise from my [[negligence]] (''okay''), [[fraud]] (''okay''), or — | ||
Isn’t the | Isn’t the concept you are reaching for “breach of contract”? | ||
{{sa}} | {{sa}} | ||