Why do we (attorneys and future attorneys) care?
We use standards to determine a party’s obligations and whether those obligations have been met. We compare a party’s performance or action to a standard when no explicit terms are provided. We usually use standards in those matters where substantive obligations matter – contracts, torts, and statutory and regulatory compliance. Sometimes they pop up in other contexts. Specific classes of matters that often involve standards include:
• Explicit incorporation by reference in contracts, regulations, statutes, and other documents;
• Implied quality standards in various industries and trades, particularly construction;
• Implied terms controlling inter alia quality, timeliness, risk of loss, and sometimes price in the sales of goods;
• Standards of care in negligence actions; and
• Determining defects in products liability actions.
What difference do standards make?
Standards may determine the substantive obligations of parties, but the details of those obligations do not appear on the surface. When standards are implied rather than explicitly incorporated by reference, they are hidden even more, e.g., implied terms in commercial transactions. It is this submarine nature of standards that leads to so much confusion and litigation.