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Gross negligence = ordinary negligence + vituperative epithet?

Vituperative epithets feature strongly in this golden oldie about references to “gross negligence” in contracts.

IP Draughts

grossIP 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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Shall or will in contracts?

This golden oldie discusses an evergreen theme. Since writing it, IP Draughts has become aware that vestiges of contracts under seal do exist in some US state laws, sometimes known as “specialties”, but they rarely seem to be used for commercial contracts

IP Draughts

This posting is prompted by seeing this recent article, on a non-legal, grammar blog, about the distinction between shall and will, including the use of these words in contractual obligations.

To focus the discussion, here are some examples of contractual obligations:

  1. The Consultant shall provide the Services to the Client.
  2. The Consultant will provide the Services to the Client.
  3. The Consultant [undertakes / agrees] to provide the Services to the Client.
  4. The Consultant covenants to provide the Services to the Client.

Conventional practice among most English commercial solicitors is to use version 1 above.  Shall is almost always used (in preference to will) to express contractual obligations in the template agreements of City [of London] law firms.

Sometimes, variants on version 3 appear, but they take up more words than version 1 and add nothing to the legal effect under English law, so should probably be…

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His Honour Judge Pettifog

We haven’t heard much from Mr Pettifog recently. His schemings have come to nought, and he is often to be found in the saloon bar of the Freemason’s Arms, regaling the assembled throng with tales of yore. Here is one of those tales, of the time when he nearly became a judge in the Caribbean…

IP Draughts

bourbonI am going to become a judge, announced Mr Pettifog at partners’ tea last week. There was a brief silence. Who is going to make you a judge?, asked Alice sharply. Alice serves the tea on these occasions. She is even older than Mr Pettifog, and knew him when he was young, so he accepts her direct questioning.

The Attorney General, Mr Pettifog replied. He looked pleased with the reaction that his announcement had made. In truth, his listeners were feeling a mixture of disbelief that anyone would make him a judge, relief that they might finally be rid of him, and irritation that Alice was not serving the tea.

The Attorney General of England and Wales?, asked Bright Sparkette, displaying the attention to detail that illuminates all of her work.

Mr Pettifog chewed thoughtfully on a bourbon cream biscuit. Not exactly, he said eventually.

lincolns innWith some prompting, he admitted…

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Are universities difficult to negotiate with?

This golden oldie from 3 years ago considers whether universities are particularly “difficult” in negotiations. Short answer: no they are not.

IP Draughts

difficultThere is a strand of opinion among companies that deal with universities, that the latter (and in particular their technology transfer departments) overvalue their technology; that they are difficult to negotiate with; and that contractual discussions take for ever.

IP Draughts discussed this point earlier this week with a poacher-turned-gamekeeper, who used to work in a university TT department, and now works for a company that in-licenses IP from universities. As this person freely admitted, it was difficult for a university to trust complaints of this kind, when made by a company in the course of negotiations, particularly if, in the next breath, the company demands very wide commercialisation rights that could be viewed as a “land grab”. The company in that situation is not an objective witness.

And yet the accusations persist. They are not just made in the heat of negotiations. They feature in national reports on university…

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