PROVIDED CLAUSES EXCLUDING OR LIMITING LIABILITY

Limiting liability

Limiting liability

The court has tended to outlook clauses which attempt to limit liability as a distinct class and have evolved particular directions to deal with them. Part of the cause for this is that many exclusion clauses are not simply the product of good contractual planning between parties bargaining on equal terms. They emerge in benchmark pattern agreements, which the other party has little alternative as to if to accept or not, and may give the party relying on them a very very wide exemption from liability, both in tort and in contract.

When such inequitable clauses began to emerge with frequency in the 19th Century, the enclosures developed ways of limiting their effectiveness. While the methods taken up for the most part comprised of “heightened” submission of those utilised more usually for the purpose of assembling and interpretation of contracts, the court apparently viewed exclusion clauses from the general run of contractual provisions and in specific the distinction drawn between clauses which omitted liability and those that characterise obligations, is understandable in the context of the general approach founded on “freedom of contract”. If the enclosures were saying on the one hand that parties were free to work out their own contractual obligations, and that the inquiry of if the obligations were equitable or reasonable was usually irrelevant, it would origin problems if, on the other hand, there were glimpsed to be interfering in this contractual freedom. By healing exclusion clauses as distinct from clauses defining obligation such interference could be restricted and conceived to undertake a specific kind of position tangential to the centered topic of the freedom of the parties to work out their obligations towards each other.

In the 20th years the fact that agreement at times need guideline to accomplish “fairness” was accepted more directly and furthermore assembly introduced the unjust Contract Terms proceed 1977 and the Unfair periods in buyer agreements Regulations 1999. These controls are not restricted to clauses which are stated as omitting liability, but do continue to some span to provisions which purport to define obligations. Despite the statutory intervention the widespread law remains very important, not least because its directions apply to all agreements, whereas the UCTA 1977 and the UTCCR 1999 only apply in restricted situations. The adversity with both of these regimes is that definition of what clauses should or should not be incorporated into contracts varies substantially. UCTA hunts for to omit clauses which are awkward and UCTTR hunts for to omit periods which are against values of good faith. This term paper will discover these definitions and contend that a lone regime of “fairness” should be applied in alignment to clarify the living law.

Under UCTA the check to be directed to work out whether a clause encounters the requirements of reasonableness is set out in S11 of Act. The central element of the test is s11(1): A fair and reasonable one to be included having regard to the ...