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New post: Defining gross negligence in a contract, and why

In working on the general-definitions chapter of the Common Draft contract form book, I started investigating how courts define gross negligence for purposes of determining whether a limitation of liability or an indemnity clause will be negated. It turned out to be a non-trivial issue. I wrote up some notes, to go with a sample definition; it’s posted at Defining gross negligence in a contract.

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  • Mark Anderson 2012-09-05, 12:16 am

    DC, that is all very interesting. It makes me think one should try to define the term. In my experience, it is very commonly seen as a carve-out from US-style indemnities, together with wilful misconduct. When I first started in practice, one of my arguments for rejecting it was that gross negligence didn’t really exist as a concept in English contract law (though it does surface in some other areas). If pressed I might offer “reckless or wilful misconduct”, which is not too far from your definition. In later years, I saw it so frequently and it seemed to be so tiresome to negotiate with US lawyers – who usually insisted on it as a standard term – that I lost any youthful enthusiasm I had for debating the point, particularly in contracts with “mutual” indemnities.

    I have added some other comments to Ken Adams’ follow-up post at http://www.koncision.com/defining-gross-negligence-in-a-contract