Contractual negligence: Difference between revisions

An attorney eyes you wistfully and slides a draft across the table to you.

{{box|Party A shall not be liable for any losses, howsoever caused, unless they arise directly from its own {{tag|negligence}}, {{tag|fraud}} or {{tag|wilful default}}.}}

What should one make of this? At a glance it seems perfectly reasonable. To be sure, it is time-honoured boilerplate, thrown into contracts to close them out like chump change tossed into the bill platter at the end of an agreeable meal with passable company of whom one has now had enough.

But does it make sense to fritter away a contractual claim this way? In this author's opinion no, except in one special case: a party's ability to claim under an {{tag|indemnity}}.

You can't exclude contractual liability for fraud: to do so is to step beyond the hermeneutic boundaries of the game one plays in entering a legal arrangement<ref>{{google|Gadamer}}</ref> so it's hardly a great concession to say so in a contract. A contract where, by its terms, one could behave fraudulently would be an arch affair.  

A heartily-bandied phrase which sounds like it ought to mean something. This fellow's best guess is something like a “deliberate refusal to perform one’s obligations under a contract”: not ''too'' far removed from [[fraud]] (it raises a presumption of fraudulence on the part of the actor in agreeing to the obligation in the first place) but, in any weather, a ''subset'' of the class of events “breaches of contract”.  

Now [[breach]]es of contract, under the law of contract, entitle an innocent, wronged fellow to redress. That’s what it means to be a breach. So it ought not cause your heart to leap to have your counterparty offering to be responsible for ''wanton'' examples of this behaviour. It is hardly a mark of generosity. Indeed; you might wonder why he seeks to exclude ''less'' wilful “[[default]]s” - or even ''unwilled'' defaults - being, as they are, ''defaults''.

For here's the point, lazengem: The point of a contractual ''obligation'' is to have some means of making the person who owes it ''do'' it - or, failing that - compensating you for ''not'' doing it. Why else have one?

Is it reasonable to disclaim liability for breaches of contract where you haven’t been negligent? It sounds all right at first blush. But negligence is the standard of behavior expected in [[tort]], where, by definition, ''there is no contract'' to which one can appeal for guidance on how one is meant to behave.  

Now [[negligence]] is all good fun - reasonable men (and [[Fardell v Potts - Case Note|women]]), [https://en.wikipedia.org/wiki/The_man_on_the_Clapham_omnibus Clapham omnibuses], [https://en.wikipedia.org/wiki/Donoghue_v_Stevenson snails, ginger-beer], escaping domestic animals - but it evolved ''[[ad hoc]]'' to address a particular human dilemma - the plight of an unseen neighbour. That dilemma simply ''does not exist'' where you have a contract. Here, you know damn well who your neighbour is, having spent six months hammering out a legal agreement with the blighter. So it seems all rather forlorn that one should fall back, weakly, on a standard devised by imaginative judges to look after the interests of contract-less folk who found themselves [[Fardell v Potts|struck by a punt being carelessly navigated the wrong way up a flooded avenue]].