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Wilful default: Difference between revisions
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The “default” part suggests a ''contractual'' breach, but there are better words for that kind of thing — “breach”, for example — but in any case the wilfulness, wantonness or licentiousness of those who misperform their contracts has never been of much interest to the courts (as Lord Justice Bowen illustrates): what matters is ''that'' there is a breach. If there is, the responsible fellow is for for the same high-jump regardless of how obstreperous her frame of mind may have been when she did, or didn’t, do what she shouldn’t, or should, have done. | The “default” part suggests a ''contractual'' breach, but there are better words for that kind of thing — “breach”, for example — but in any case the wilfulness, wantonness or licentiousness of those who misperform their contracts has never been of much interest to the courts (as Lord Justice Bowen illustrates): what matters is ''that'' there is a breach. If there is, the responsible fellow is for for the same high-jump regardless of how obstreperous her frame of mind may have been when she did, or didn’t, do what she shouldn’t, or should, have done. | ||
Thus the | Thus the wronged lamb on the other side of the bargain is free from mental strife that comes from having to assess the breacher’s wilfulness. This is the very beauty of contractual relations: one need not care a jot about your counterparty’s ''intentions''; what matters is her ''actions''. That she does what she must do through gritted teeth or with a heavy heart is neither here nor there. | ||
So, wantonly changing your contractual outcome depending on your counterparty’s bad attitude seems a rum affair. | So, wantonly changing your contractual outcome depending on your counterparty’s ''bad attitude'' seems a rum affair. | ||
Now, there is limited call for the sainted triplet in any contract in the first place — one makes a contract precisely to slip these sanctimonious strictures of the general civil law — but where you are reining the girth of an indemnity and, if it is well-crafted, there hasn’t ''been'' a breach of contract there is at least a good reason to impose a different standard. | Now, there is limited call for the sainted triplet in any contract in the first place — one makes a contract precisely to ''slip'' these sanctimonious strictures of the general civil law — but where you are reining the girth of an [[indemnity]] and, if it is [[Well-crafted indemnity|well-crafted]], there hasn’t ''been'' a breach of contract there is at least a good reason to impose a different standard. | ||
You indemnify me for losses I incur in performing this contract except where those losses arise from my [[negligence]] (''okay''), [[fraud]] (''okay''), or — | You indemnify me for losses I incur in performing this contract except where those losses arise from my [[negligence]] (''okay''), [[fraud]] (''okay''), or — | ||