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Contractual negligence: Difference between revisions
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==={{tag|Negligence}}=== | ==={{tag|Negligence}}=== | ||
What about excluding liability for breach of contract where you haven’t been negligent? It sounds all right at first blush. But does negligence make sense in the context of a contract? | |||
Now [[negligence]] is all good fun | 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]] and so on — but it evolved ''[[ad hoc]]'' to address a particular human dilemma ''that does not exist where you have a contract'': that is, the plight of an unseen neighbour: a person with whom you share the planet, the highway, or a boundary, but with whom you have no formalised framework of civil obligations. Outside the criminal law on one hand and the bounds of an enforceable legal contract on the other, the law would have nothing to say about how individuals should treat each other had the [[common law]] of tort not arisen to bridge that gap. | ||
There ''is'' no such gap when you have a contract<ref>Assuming your contract was competently drafted, of course.</ref>: you know damn well who your neighbour is, having spent six months hammering out a legal agreement with the blighter. You know what you expect your neighbour to do, and what your neighbour expects of you. So it is a bit feeble to suddenly fall back 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]]. | There ''is'' no such gap when you have a contract<ref>Assuming your contract was competently drafted, of course.</ref>: you know damn well who your neighbour is, having spent six months hammering out a legal agreement with the blighter. You know what you expect your neighbour to do, and what your neighbour expects of you. So it is a bit feeble to suddenly fall back 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]]. | ||
And what does “[[negligence]]” even mean, in the context of a [[contract]], where two merchants have looked each other in the eye and agreed precisely the duties they do owe one another? Would not ''any'' breach of those duties be “negligent”? | And what does “[[negligence]]” even mean, in the context of a [[contract]], where two merchants have looked each other in the eye and agreed precisely the duties they do owe one another? Would not ''any'' breach of those duties be “negligent”? Since we have a contract, we know exactly who our “[[neighbour]]” is – the [[counterparty]] – and we know exactly what our duty is: it is written in the {{t|contract}}. If we do not perform the contract according to its terms, we have fallen short of an express duty to our “[[neighbour]]”. | ||
[[File:Contractual loss2.PNG|450px|thumb|right|Damage against Wantonness. Mapped. Seriousness pointed out.]] Consider the handsome table to the right. This charts all conceivable breaches of contract. The easiest cases are in the bottom right: not much loss, but the defaulting party has been gratuitous in its behavior and however paltry the claim, has no leg to stand on. | [[File:Contractual loss2.PNG|450px|thumb|right|Damage against Wantonness. Mapped. Seriousness pointed out.]] Consider the handsome table to the right. This charts all conceivable breaches of contract. The easiest cases are in the bottom right: not much loss, but the defaulting party has been gratuitous in its behavior and however paltry the claim, has no leg to stand on. | ||
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The hard cases are in the top left: here there has been little culpable misbehaviour as such (but note our condition to entry: the contract ''has'' been breached), but a significant loss has come about nonetheless. | The hard cases are in the top left: here there has been little culpable misbehaviour as such (but note our condition to entry: the contract ''has'' been breached), but a significant loss has come about nonetheless. | ||
Are these the examples an exclusion from liability for negligence is meant to cover? Surely not: a contractual obligation is a contractual obligation. Doing things this way betrays laziness or a lack of legal acuity from your [[mediocre lawyer|counsel]]. It is not that you wish to exclude contractual liability if a party hasn’t been negligent: what you mean to say is that your counterparty ''is only obliged in the first place to exercise a certain standard of care'', | Are these the examples an exclusion from liability for negligence is meant to cover? Surely not: a contractual obligation is a contractual obligation. Doing things this way betrays laziness or a lack of legal acuity from your [[mediocre lawyer|counsel]]. It is not that you wish to exclude contractual liability if a party hasn’t been negligent: what you mean to say is that your counterparty ''is only obliged in the first place to exercise a certain [[standard of care]]''<ref>Or, perhaps, should be excused should a [[force majeure]] come about.</ref>. If you craft the contract that way, you don’t ''need'' to exclude liability for prudent behaviour, because thast is all you had to do to comply with the contract in the first place. | ||
====But isn't this an easier catch-all?==== | ====But isn't this an easier catch-all?==== | ||