Vituperative epithets feature strongly in this golden oldie about references to “gross negligence” in contracts.
IP Draughts first encountered references to gross negligence in contracts in about 1984. Working as an in-house lawyer for a UK-based research and engineering consultancy, he negotiated some contracts that were based on US templates. Often, those US-style contracts would include clauses that limited liability or provided for indemnities, yet made an exception in the case of liability caused by a party’s gross negligence or wilful misconduct.
In his callow youth, IP Draughts’ reaction to such an exception in negotiations was to point out that gross negligence did not feature as a well-understood concept in English contract law. Sometimes, he would negotiate to remove the exception. On other occasions, he would propose alternative wording, such as “reckless or wilful misconduct”.
Nowadays, in his near dotage, IP Draughts has seen references to gross negligence so many times in contracts that he is inured to them. (Inure: there is…
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