Contractual negligence: Difference between revisions

An attorney eyes you wistfully and slides a draft across the table to you. It includes the following:

At a glance it seems reasonable: 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.  

A heartily-bandied phrase<ref>see also “[[wilful misconduct]]”, a formulations which Americans seem to prefer, but which to [[Jolly Contrarian|these cloth ears]] carries even less legal meaning.</ref> 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 comprising a “[[breach of contract]]”.  

For here's the point: 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?

''See - {{casenote|Fardell|Potts}}. No, really. Go there. You won’t regret it.''

 

 

 

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 that does not exist where you have a legal 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.

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”?

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'', or perhaps should be excused should a [[force majeure]] come about. If you craft the contract that way, there’s no need to carve out liability for non-negligent behaviour, because that behaviour wouldn’t breach the contract in the first place.

====But isn't this an easier catch-all?====

“But”, yon lazy [[mediocre lawyer|attorney]] wails, “adopting that approach means we have to write in a standard of care to every obligation under the contract! As a plain English denizen you can't really want that? Surely it's easier to carve it out!”