Here’s what MSCD 13.761–62 has to say about willful and willfully:
As it’s usually used in contracts, the word willful, as in willful misconduct, is not only vague but also ambiguous. It means intentional,” but drafters usually don’t make it clear whether the focus is on the party’s action or on the consequences of the party’s action—it’s possible to act intentionally without intending to cause damages (see 13.453). For a case that involved this ambiguity, see Johnson & Johnson v. Guidant Corp., 525 F. Supp. 2d 336, 349–51 (S.D.N.Y. 2007).
Instead of willful or willfully, use intentional or intentionally (they’re clearer words) and specify that the party’s intent pertains to the consequences of its action (see 13.457 for an example of a provision that does that), unless given the context it makes more sense to have the party’s intent pertain to its taking that action.
Why mention this? Because the other day I had occasion to put this advice into effect in the course of redrafting a commercial template for a client. The first of the phrases below exhibits the ambiguity of willful; the second one fixes it in the manner described in MSCD.
except to the extent those Indemnifiable Losses are caused by the Vendor’s negligence or willful misconduct
except to the extent the Vendor negligently or intentionally caused those Indemnifiable Losses
1 thought on “Revisiting the Ambiguity in “Willful””
That’s good advice in your excerpt from MCSD, Ken — although if I were a vendor reading your redraft, I’d probably want to tighten up the definition, because it gives the customer (your client) too much room to escape (what I presume is) the limitation of liability.
I also like the advice of the J&J v. Guidant court: If you’re going to use the term willful, then for heaven’s sake define it, instead of leaving the court guessing. Here’s one stab at a definition, which I’m working into a textbook I’m writing for the contract-drafting class I teach for 3Ls; I’d be interested in any thoughts you might have:
xx.x Willful misconduct refers to intentional action that the actor knows to be wrongful, as shown by clear and convincing evidence
a) Willful misconduct and similar terms (e.g., willful action or willful conduct) refers to action or conduct — each including, for this purpose, one or more omissions — as to which it is shown that:
1) the actor’s intent was specifically to cause one or more particular wrongful consequences; and
2) the actor knew or should have known that those particular consequences were wrongful.
b) A party asserting that particular action or conduct was willful must prove that assertion by clear and convincing evidence in support of each of the elements enumerated in subdivision (a).
c) For the avoidance of doubt and in the interest of establishing a bright-line test, willful misconduct and similar terms do not include action or conduct where the actor intended at least in part to advance its own lawful interests.