Using the Terms “Negligence” and “Gross Negligence” in a Contract

In this recent post I considered whether there’s any point in providing in a contract a definition of the term gross negligence. And in this other recent post I considered the adjective wanton. But both posts were inadequate, so I offer instead in this post a broader look at use of the terms negligence and gross negligence in contracts. It … Read More


[Don’t bother reading this post! It has been superseded by this post.] Today another interesting contract word came to my attention—wanton. Here’s my instapost on the subject. Wanton is seriously old-fashioned. It has different meanings. The meaning intended in contracts is, presumably, “having no just foundation or provocation; malicious.” But I’m not sure where wanton is meant to fit. You have intentional misconduct, which involves … Read More

Defining “Gross Negligence” in a Contract?

[Don’t bother reading this post! It has been superseded by this post.] I was pleased to see that today D.C. Toedt posted on his blog this item about defining gross negligence in a contract. It’s something that I’d idly thought about before consigning it to a far corner of my mind. In his post, D.C. considers the caselaw regarding the … Read More

“Likely” and “Probable”

The words likely and probable both express the degree of probability of something occurring. They’re not vague words. Vagueness is a function of borderline cases—at what point does someone become tall? It follows that vague words such as promptly and material require that you assess circumstances from the perspective of a reasonable person. By contrast, likely and probable aren’t a function of reasonableness. Nevertheless, likely and probable exhibit … Read More