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{{a|tort|{{subtable|{{liability ladder}}}}}}{{quote|
{{a|tort|{{subtable|{{liability ladder}}}}}}{{quote|
“Even a serious lapse is not likely to be enough to engage the concept of gross negligence. One is moving beyond bad mistakes to mistakes which have a very serious and often a shocking or startling (cf. “jawdropping”) quality to them.”
“Even a serious lapse is not likely to be enough to engage the concept of gross negligence. One is moving beyond bad mistakes to mistakes which have a very serious and often a shocking or startling (cf. “jawdropping”) quality to them.”
:—{{casenote|Federal Republic of Nigeria|JP Morgan Chase Bank}}}}
:—{{casenote|Federal Republic of Nigeria|JP Morgan Chase Bank}}}}''For a long essay on the related question “why would one ''use'' negligence in a [[contract]] at all?” see the article about “[[contractual negligence]]”. For a short answer to that question try this: Unless one has an [[indemnity]], '''one shouldn’t'''.''
===A fish out of water===
===A fish out of water===
Here is a curious thing. The [[common law]] of [[tort]], from whose loamy soil the basic idea of negligence took root, has no concept of gross negligence. Tort polices those civil relations where the parties have not agreed in advance how they should treat each other: here there are no duties, so they must be inferred, and — by reference to that mythical figure on the Clapham Omnibus — the courts derived the [[standard of care]] a [[reasonable person]] owes to her [[neighbour]]s. Should you fall short of that, you have committed a tort. If you have not, you don’t. There is no “supermajority” over that, in [[tort]], whereupon you take a heightened liability. You have a duty of care; you either observe it or you don’t.  
In broad terms, [[common law]] liability arises between two parties when one breaches its express or implied duties to the other.


''Gross'' negligence, therefore, exists only in the transplanted soil of contract: a place with no need for inferred duties of care ''at all''. SO we are already in a fairly weird place, which is why so many legal eagles are confused about it.
Express duties are easy: the parties agree them advance. They are governed by the law of [[contract]]. The standard of care is “did you do what you agreed to do?” A party’s state of mind when it fails to do so (whether wilful, inadvertent or something in between) doesn’t matter.


''For an essay on the related question “why would one ''use'' negligence in a [[contract]] at all?” see the article about “[[contractual negligence]]”. For a short answer to that question try this: Unless one has an [[indemnity]], '''one shouldn’t'''.''
''Did you carry out your duty, or didn't you?''


For a short one, try this:
There is a world of nuance in ''framing'' those duties — see below — but once framed, the question is binary.
===Why gross negligence commits a category error===
In broad terms, common law liability arises between two parties when one breaches its express or implied duties to the other.


Express duties are easy. The parties agree them advance. They are governed by the law of contract. The standard of care is “did you do what you agreed to do?” A party’s state of mind when it fails to do so (whether wilful, inadvertent or something in between) doesn’t matter.
Where the parties have not agreed their respective duties in advance, the courts must imply them. This they do through the law of [[tort]], extruding them from abstract ideas like the “[[duty of care]]”, the “[[neighbour]]” principle, and the mythical man<ref>The easily triggered: should ''not'' Google “''[[Fardell v Potts]]''”. Those of a robust constitution might enjoy it, however.</ref> on the [[Man on the Clapham Omnibus|Clapham Omnibus]].


Did you carry out your duty, or didn't you?
Again, much nuance required to frame the scope and extent of these duties, but once they are framed, it becomes a binary question. ''Did you do your duty, or not''?


(There is a world of nuance in framing those duties — see below — but once framed, the question is binary.)
The rationale for the bar on [[concurrent liability]] in [[contract]] and [[tort]] is thus clear: the two liabilities are mutually exclusive: contract applies where the parties ''have'' agreed duties, tort where they have ''not''. A duty inferred from abstract basic principles of fairness to mediate the interactions of strangers should never override a deliberate pre-allocation of risks that acquaintances have agreed before dealing with each other.


Where the parties have not agreed their respective duties in advance, the courts must imply them. This they do through the law of tort, extruding them from abstract ideas like the duty of care, the neighbour principle, and the mythical man* on the Clapham Omnibus.
So, what does a covenant “not to be negligent” mean, within a contract? If it means anything, it is “do not fall short of your duty to your counterparty”. Since that duty is defined by the contract, it just means “''do not breach the contract''”. [[Negligence]], in a [[Contractual negligence|contract]], adds nothing.<ref>There is one gloss on this, relating to the allocation of the risks of unwanted externalities that do not arise through breach of contract. These are covered by [[Indemnity|indemnities]], not the principles of [[Breach of contract|breach]], [[causation]] and [[remoteness of damage]].</ref>


(*Easily triggered: do not Google “Fardell v Potts”. Those of a robust constitution might enjoy it)
Now, what of gross negligence? It sounds like a tortious concept, but on closer inspection, is not. You are liable, in tort, for ''normal'' negligence. The ''grossness'' of ones negligence never comes into it: the hurdle has long since been vaulted. This is a definitional thing: ''whatever you are liable for is, QED, negligence''. There is no inner circle of hell wherein more terrible tortious penalties accrue.


Again, much nuance required to frame the scope and extent of that duty, but once framed, it is a binary question. Did you meet your standard of care, or not?
So gross negligence is — must be — a creature of contract. It wasn’t judge-made. One day a commercial lawyer managed to get “gross negligence” into a contract and the rest is history. US courts and, more recently, English ones have been wrestling with it ever since.


The rationale for the bar on concurrent liability in contract and tort is thus clear: contract applies where you have agreed duties, tort where you have not. A duty inferred from abstract basic principles should not override a deliberate pre-allocation of actual risks.
But there is no room for evaluating how carelessly one acted when breaching a contract. It is binary: you either breach or you do not. You can have acted with unimpeachable faith, in the most prudent and dovish way, but if you didn’t do what you promised, ''you are in breach''.
 
So what does a covenant “not to be negligent” add to a contract? If it means anything, it is “do not fall short of your common law duty”. Since that duty is wholly defined by the contract, it just means “do not breach the contract”. It adds nothing.
 
Now, gross negligence. This sounds like a tortious concept, but isn’t. You are liable in tort for normal negligence. This is a definitional thing: whatever you are liable for is, QED, negligence. There is no inner circle of hell wherein more terrible tortious penalties accrue.
 
So gross negligence is a creature of contract. It wasn't judge-made. One day a commercial lawyer managed to get “gross negligence” into a contract and the rest is history. US courts and, more recently, English ones have been wrestling with it ever since.
 
But there is no room for evaluating how carelessly one acts when breaching a contract. It is binary. You either breach it or you do not. You can have acted with unimpeachable faith, in the most prudent and dovish way, but if you didn't do what you promised, you are liable.


Interposing a behavioural standard into a contract, therefore, makes a category error.
Interposing a behavioural standard into a contract, therefore, makes a category error.


Now, when framing contractual duties themselves, we impose performance standards, short of “must at all costs”, all the time: “best reasonable endeavours”, ”all practicable steps”, “may, but is not obliged to”— that kind of thing.
Now, when framing contractual duties themselves, we impose performance standards, short of “must, at all costs...” all the time: “[[best reasonable efforts]]”, “[[Practicable|all practicable steps]]”, “may, but is not obliged to”— that kind of thing.


But these performance standards necessarily define what is “normal negligence” in the contractual context — that is, what counts as a simple breach of contract. No-one of them undermines the binary nature of liability for breach.
But these performance standards necessarily define what is “''normal'' negligence” in the contract — that is, what counts as a simple breach. No-one of them undermines the binary nature of liability for breach.


The world — the new world especially —  is awash with contracts riddled with gross negligence (in both senses?), it is true. This is a burden for our learned friends in the QBD and ninth circuit. ({{casenote|Central Bank of Nigeria|JP Morgan Chase Bank}} refers)
It is true: the world — the [[US attorney|new world]] especially —  is awash with contracts riddled with gross negligence. This is a burden for our learned friends in [[Litigation|litigation department]] ({{casenote|Central Bank of Nigeria|JP Morgan Chase Bank}} refers).


But for all us commercial attorneys out there, making these instruments for courts to unpick: come on. We can do better.
But for we commercial attorneys, creating these instruments for courts to unpick: ''come on''. We can do better. As to how: read on.
===A spiritually bankrupt concept===
===A spiritually bankrupt concept===
When negotiating to save the adjective “gross” from the oblivion it so richly deserves, your best tack — and it’s not great — is to say “look, if we muck up, we’re hardly going to stand on ceremony, are we? So don’t worry about the legal docs”.
When negotiating to save the adjective “gross” from the oblivion it richly deserves, your best tack — and it’s not great — is to say “look, if we muck up, we’re hardly going to stand on ceremony, are we? So don’t worry about the legal docs”.


This is not an edifying position for a lawyer to take, implying as it does that therefore you may as well not have a legal document at all. And it begs the question: if you don’t really mean it, why are you bothering to insist on “gross” negligence in the first place?<ref>The real answer is “because [[negotiation]] is [[performative]].”</ref>  
This is not an edifying position for a lawyer to take, implying as it does that therefore you may as well not have a legal document at all. And it begs the question: if you don’t really mean it, why are you bothering to insist on “gross” negligence in the first place?<ref>The real answer is “because [[negotiation]] is [[performative]].”</ref>  


After all, if you’re negligent, you’re negligent. It is hard to maintain your dignity against the complaint of an innocent, irate and out-of-pocket client by saying you’ve only been a ''bit'' negligent.
After all, if you’re [[Negligence|negligent]], you’re negligent. It is hard to maintain your dignity against the complaint of an innocent, irate and out-of-pocket client by saying you’ve only been a ''bit'' negligent.


A good way of looking at this is to put it in the language of the laity. Like many other commonplaces of the ''[[Rechtsadler|Rechtsadlerkanon]]'', legal drafting can dress outright daftitude in sombre vestments. Take the time-worn [[indemnity]] for costs, framed in usual legal ''kapusta'':
A good way of looking at this is to put it in the language of the laity. Like many other commonplaces of the ''[[Rechtsadler|Rechtsadlerkanon]]'', legal drafting can dress outright daftitude in sombre vestments. Take the time-worn [[indemnity]] for costs, framed in usual legal ''kapusta'':
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{{quote|“''You must [[reimburse]] us for any extraordinary costs we could not, '''without being [[reckless]],''' avoid when providing you our services.''”}}
{{quote|“''You must [[reimburse]] us for any extraordinary costs we could not, '''without being [[reckless]],''' avoid when providing you our services.''”}}


''Not [[reckless]]?'' could you not be a bit more committal than ''that''?
''Not [[reckless]]?'' Could you not be a bit more committal than ''that''?
===English law===
===English law===
====“Gross” versus “casual” negligence====
====“Gross” versus “casual” negligence====
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