Wilful default
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Negotiation Anatomy™
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The one, bastard part of that sainted triplet “negligence, fraud or wilful default” without an obvious legal meaning. Some, including Americans call it wilful misconduct, which is even more baffling.[1]
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 sort of fellow one might encounter on the Clapham omnibus; the latter hailing from criminal law[2] 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.
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.
So, wantonly changing your contractual outcome depending on your counterparty’s bad attitude seems a rum affair.
Now, there is limited call for the sainted triplet in any contract in the first place — one makes a contract precisely to slip these sanctimonious strictures of the general civil law — but where you are reining the girth of an indemnity and, if it is well-crafted, there hasn’t been a breach of contract there is at least a good reason to impose a different standard.
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 word you are reaching for “breach of contract”?
See also
References
- ↑ Though not without legal precedent: see wilful misconduct for more discussion.
- ↑ Interestingly, the there is no tort of fraud; it is called “deceit” and was ably summarised in The Kriti Palm 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.”