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Contractual negligence: Difference between revisions
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{{a|glossary|}}An attorney eyes you wistfully and slides a draft across the table to you. It includes the following: | {{a|glossary|[[File:Contractual loss.PNG|450px|center|Damage against Wantonness. Mapped.]]}}An attorney eyes you wistfully and slides a draft across the table to you. It includes the following: | ||
:''My client shall not be liable for any losses, howsoever caused, unless they arise directly from its own {{tag|negligence}}, {{tag|fraud}} or {{tag|wilful default}}.'' | :''My client 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 to make of this? | What to make of this? | ||
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. | 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. | ||
But does it make sense to fritter away a contractual claim this way? In [[Jolly Contrarian|your correspondent]]’s opinion, no, except in one special case: under an {{tag|indemnity}}. | But does it make sense to fritter away a contractual claim this way? In [[Jolly Contrarian|your correspondent]]’s opinion, no, except in one special case: under an {{tag|indemnity}}. | ||
==={{tag|Fraud}}=== | ==={{tag|Fraud}}=== | ||
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>. A contract where, by its terms, one could behave fraudulently would be an arch affair. So it’s hardly a great concession to say so. | 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>. A contract where, by its terms, one could behave fraudulently would be an arch affair. So it’s hardly a great concession to say so. | ||
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==={{tag|Wilful default}}=== | ==={{tag|Wilful default}}=== | ||
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. | 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. Our 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]]”. | ||
Now [[breach]]es of contract, under the law of contract, entitle a 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''. | Now [[breach]]es of contract, under the law of contract, entitle a 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 | 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? | ||
So is that what negligence is meant to do? | So is that what negligence is meant to do? | ||
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====But isn’t this an easier catch-all?==== | ====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 | “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!” | ||
But a contract is meant to stipulate what you are expected to do. For some obligations, a “reasonable standard of care” rider is not appropriate. The payment of money, for example. | But a contract is meant to stipulate what you are expected to do. For some obligations, a “reasonable standard of care” rider is not appropriate. The payment of money, for example. | ||