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Gross negligence: Difference between revisions
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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. | 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. | ||
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> | 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]], therefore, adds nothing that was not already there.<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> | ||
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. | 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. | ||