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Contractual negligence: Difference between revisions
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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. | 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 | 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]]. | ||
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 owe one another? Would not ''any'' breach of those duties be | 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”? | ||
[[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. | ||