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Wilful default: Difference between revisions
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The “default” part suggests a ''contractual'' breach, but we feel there is a rather better word for that — “breach” — and in any case the wilfulness, wantonness or licentiousness of one’s behaviour under while misperforming a contract has never been of any great interest to those who sit on the [[Queen’s Bench Division]]: what matters is ''that'' you have breached it. If you have, you are for it, however obstreperous your frame of mind while you did, or didn’t, do what you shouldn’t, or should, have done. The release from exactly that anxiety is the very beauty of contractual relations: one need not care a jot about your counterparty’s intentions; what matters is her actions. That she does what she must do through gritted teeth or with the heaviest of hearts need not bother you. | The “default” part suggests a ''contractual'' breach, but we feel there is a rather better word for that — “breach” — and in any case the wilfulness, wantonness or licentiousness of one’s behaviour under while misperforming a contract has never been of any great interest to those who sit on the [[Queen’s Bench Division]]: what matters is ''that'' you have breached it. If you have, you are for it, however obstreperous your frame of mind while you did, or didn’t, do what you shouldn’t, or should, have done. The release from exactly that anxiety is the very beauty of contractual relations: one need not care a jot about your counterparty’s intentions; what matters is her actions. That she does what she must do through gritted teeth or with the heaviest of hearts need not bother you. | ||
So changing outcomes depending on the mental state of your counterparty seems a rum affair. There is limited call for the sainted triplet in any contract in the first place — the very reason you enter a contract is to slip these sanctimonious strictures of the general civil law — but where you are raining in an indemnity where, by definition, there hasn’t been a breach of contract (''right''?) there is at least a good reason to impose a different standard. | |||
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