Wilful default: Difference between revisions

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”.

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.  

Thus the innocent lamb on the other side of the bargain is free from mental strife that might otherwise come from having to assess wilfulness. This 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 a heavy of hearts is neither here nor there.

Isn’t the concept you are reaching for “breach of contract”?