Professional negligence is somewhat related in the sense that it's generally recognizable in extremes, but is overall too abstract to define with much granularity. You can't measure it to tiny units.

I want to understand how something like this is codified. I did see this question (When is "reasonable" not implied in a contract?) in which "reasonable" is treated as a means of smoothing over the complexities of certain definitions.

If one wanted to codify something abstract -- like professionalism, kindness, humor -- how would that be approached? Can one simply put "reasonably" in front?

For example: say I had "kindness" baked into a friendship agreement:

I will be your friend and bring you snacks as long as you are reasonably kind.  
Signed me

... but they weren't kind and I wanted to cease bringing them snacks. Could I argue that they weren't reasonably kind? And how far can something like this be stretched before it's thrown out or ignored? Could one take it to such an extreme as reasonably cool and still have a serious verdict?

  • 1
    A contract I entered into for my business used the phrase "California commercial reasonable" . Jan 28 '20 at 20:24

It's a contract, vagueness is not something you want (from a legal perspective). If you want somebody to be "reasonably kind" you need to spell out what that means so that there is no question when it comes to breaking the contract.

For example, your contract should state something like:

I (Seph Reed, herein "me") will be John Doe's friend and provide snacks (defined in Section B) as long as John Doe:

  • Does not call me names
  • Invites me to at least 1 social activity per week
  • etc...

The contract needs to be specific because if you want to ever break the contract you need to be able to prove a breach. Specifically in the above if "John Doe" texted that you are a "STUCK-UP, HALF-WITTED, SCRUFFY-LOOKING NERF HERDER", you could break your contract for a breach of item 1.

Having vagueness in a contract invites a lawsuit, one which may be expensive for you. Courts usually look at a contract most favorably for the person who didn't draft the contract. If you want to avoid expensive litigation, don't be vague, spell out exactly what you want and what constitutes a breach.

  • Hmmm. I do see what you're saying, though no matter how many things I added, there would always be a way to be unkind that still followed the rules. What about mimicking professional negligence "these pros say that's unprofessional" => "these kind people say that was unkind"? So the definition would be vaguely kindness as could be defined by known kind people
    – Seph Reed
    Jan 28 '20 at 20:09
  • But it would have to be "defined" legally, not just by "known kind people". Some really kind people I know will call me a lot of really low-brow names that many people would consider "unkind", but I know that person and what is behind that. Contracts need to be very specific, there must be a "meeting of the minds", if John thinks calling you a "royal pain in the ass" is just "joking around", but you don't consider it that way, who is right? What does the contract say about that?
    – Ron Beyer
    Jan 28 '20 at 20:12
  • Also how do you define a "known kind person"? Even the pope can be unkind...
    – Ron Beyer
    Jan 28 '20 at 20:15
  • I guess that's the crux. With professional negligence, you can define the professional opinion by finding others who are known professionals. There's no such thing as publicly known "kind" person. Which is just a well.
    – Seph Reed
    Jan 28 '20 at 20:24
  • Then again, there are extremes where it would be very obvious a person was not "kind" (eg, kicked your dog, burned down your house, and then keyed your car). In such an extreme, do you think it would be possible to argue they were not "reasonably kind"?
    – Seph Reed
    Jan 28 '20 at 20:25

Some things are not suited to encoding as a contract, and call for an unenforceable "gentleman's agreement". The obligations and benefits of friendship would be a good example.

There are contexts where a vague term enters into a contract, for example "professionalism". The solution is not to try to define what "professionalism" is, but who gets to decide and what they can do with that decision. For example, an employment contract might have a clause relating to the employer terminating the employee based on an evaluation of their work. You might specifically quantify "number of units processed" and sack them if they don't reach the goal; you can also sack an employee based on an evaluation of the employee's "professionalism". You don't need to "define" professionalism, you need to say who gets to make the decision. For example, "based on employee's level of professionalism, as evaluated by employer. Slapping on words like "reasonable" doesn't clarify matters – professionalism is a highly subjective notion. (On the other hand, "following professional standards" could have an objective meaning, since there are professional societies for e.g. accountants, lawyers etc. which state what the "professional standards" are).

A "friendship contract" would be thrown out: the courts will not force you to like a person. The courts may force you to do a thing, in exchange for something that the other party does. Money for snacks, snacks for labor... Snacks for kindness is really not within the scope of contract law.

  • I see this as a very strong solution. Perhaps a bit too strong. If I get to declare myself as the definer of "professional" then what's to stop me from firing them for literally any reason by simply calling it "my definition of professional?" Do you have any examples which balance the distribution of power a bit more?
    – Seph Reed
    Jan 28 '20 at 20:48
  • Nothing is to stop you: as a potential employee, I would assume the worst and negotiate for a different clause. For example, "the judgment of a panel of experts from X association". If you know a way to write a computer program to automatically assign a "professionalism" score so that there is no human judgment, use that.
    – user6726
    Jan 29 '20 at 0:21

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