Wilful default: Difference between revisions
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{{a|negotiation|}}The one, bastard part of that sainted triplet [[negligence, fraud or wilful default]], “wilful default” without an obvious legal meaning. | |||
Whereas “negligence” and “fraud” are terms of forensic science — the former hailing from the common law of [[tort]], and being the failure to observe the standards of the [[Reasonable person|sort of fellow one might encounter]] on the [[Man on the Clapham Omnibus|Clapham omnibus]], and the latter hailing from criminal law<ref>Interestingly, the there is no [[tort|''tort'']] of fraud; it is called “[[deceit]]” and was ably summarised in {{casenote1|The Kriti Palm|2006|EWCACiv|1601}} as follows: “The elements of the tort of [[deceit]] are well known. In essence they require (1) a representation, which is (2) false, (3) dishonestly made, and (4) intended to be relied on and in fact relied on.”</ref> and involving a false representation, knowingly made, with the intent to profit from it — wilful default has no such lineage. “Default” suggests a contractual breach, but we feel there is a rather better word for that — “breach” — but the wilfulness, wantonness or licentiousness of one’s behaviour under a contract has never been of any great concern to those who sit on the Queen’s Bench Division: what matters is whether you have breached it. If you have, you are apt to be put in a stockage and pelted with cabbages, however obstreporous your frame of mind while you did, or didn’t. | |||
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*[[Contractual negligence]] | *[[Contractual negligence]] | ||
*[[Gross negligence]] | *[[Gross negligence]] | ||
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Revision as of 17:00, 30 June 2021
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Negotiation Anatomy™
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The one, bastard part of that sainted triplet negligence, fraud or wilful default, “wilful default” without an obvious legal meaning.
Whereas “negligence” and “fraud” are terms of forensic science — the former hailing from the common law of tort, and being the failure to observe the standards of the sort of fellow one might encounter on the Clapham omnibus, and the latter hailing from criminal law[1] and involving a false representation, knowingly made, with the intent to profit from it — wilful default has no such lineage. “Default” suggests a contractual breach, but we feel there is a rather better word for that — “breach” — but the wilfulness, wantonness or licentiousness of one’s behaviour under a contract has never been of any great concern to those who sit on the Queen’s Bench Division: what matters is whether you have breached it. If you have, you are apt to be put in a stockage and pelted with cabbages, however obstreporous your frame of mind while you did, or didn’t.
See also
References
- ↑ Interestingly, the there is no tort of fraud; it is called “deceit” and was ably summarised in The Kriti Palm as follows: “The elements of the tort of deceit are well known. In essence they require (1) a representation, which is (2) false, (3) dishonestly made, and (4) intended to be relied on and in fact relied on.”