“Wanton”

[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 It has been superseded by this post.]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 doing something intentionally. You have gross negligence, which involves reckless disregard. I don’t think there’s any room for wanton in between those two. I say don’t ever use wanton in a contract.

Here are some examples culled from the 194 contracts filed on the SEC’s EDGAR system in the past year that use wanton:

This Agreement may be terminated for Cause … if, during the Term of this Agreement, the Employee … (iii) exhibits repeated willful or wanton failure or refusal to perform his duties in furtherance of the Company’s business interest or in accordance with this Agreement …

“Cause” means conduct by the Participant reasonably likely to cause material harm to the Company that consists of proven gross negligence, wanton or willful disregard of duties, acts of fraud, embezzlement, theft or the commission of a felony in the course of his employment or service, as determined by the Board or Committee after full consideration of the facts presented on behalf of both the Company and the Participant.

For the purposes of Clause 18.4(a) “negligence, gross negligence or willful misconduct” means the failure by a person to exercise the standard of care that a reasonably prudent person would have exercised in the same or similar circumstances, and any act or failure to act (whether sole, joint or concurrent) by any person which was intended to cause, or which was in reckless disregard of or wanton indifference to, harmful consequences such person knew, or should have known, such act or failure to act would have on the safety or property of another person.

The Escrow Agent shall not be liable to either party for misdelivery of any Funds held in escrow unless such misdelivery shall be due to gross negligence or wanton and willful misconduct on Escrow Agents part.

In three of the examples, wanton is used with willful. Methinks the alliteration explains use of wanton, as opposed to any distinct meaning it conveys.

About the author

Ken Adams is the leading authority on how to say clearly whatever you want to say in a contract. He’s author of A Manual of Style for Contract Drafting, and he offers online and in-person training around the world. He’s also chief content officer of LegalSifter, Inc., a company that combines artificial intelligence and expertise to assist with review of contracts.