“Willful” can be a problematic word for the commercial litigator. According to Webster’s, it simply means “deliberate” (or obstinate, in the case of a disobedient child). In the legal world, it sometimes means something more—“malicious,” “wanton,” “egregious,” “wrongful,” “injurious,” or a whole host of similar synonyms that mean “with bad intent.” Despite this built-in ambiguity, the term “willful” has found its way into a host of significant commercial contracts, including sophisticated merger agreements and other major corporate contracts. In our practice, for example, we have seen numerous contracts that use the word “willful”—usually nestled in provisions that attempt to place limits on liability in the event of a breach of the contract.
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