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A Guide to Limitations and Exclusions of Liability

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A Guide to Limitations and Exclusions of Liability TRG law law simplified LIABILITY A Guide to Limitations and Exclusions of Liability This Guide focuses on limitations and exclusions of liability under English law in the context of business to business transactions. It does not consider the law relating to consumer contracts, which differs in some key respects. Introduction Limitations and exclusions of liability are Contents two of the most contentious and frequently discussed topics for those involved in No Limitations or Exclusions negotiating and drafting commercial Basic Law contracts. The UCTA Rules Reasonableness Test This article attempts to set out some guidance on how to understand this Drafting Limitations complex area of law. It will hopefully be of Drafting Exclusions use to both suppliers and their customers in Other Liability Issues helping to understand the law and the Final Thoughts effects of particular drafting. NO LIMITATIONS OR EXCLUSIONS What is the position on liability when there are no limitations or exclusions in When a party might be liable the contract? Contract – a contracting party who fails to comply with the express or implied terms of a contract might be liable. Most contracts seek to limit or exclude a contracting Negligence – that party may also be liable in party’s liability for breach of contract and negligence negligence by failing to exercise the degree of skill in one way or another. and care reasonably expected in circumstances However, in the absence of any limitation or where a duty of care is owed to the other party exclusion, what would the position be? (as will typically be the case with a contractual relationship). First, it is necessary to look at: Liability for negligence can exist independently of, when a party might be liable; and in parallel, to a contract. what the injured party has to prove to show that Misrepresentation – a contracting party who has the other party was liable; and made a statement before the contract was finalised which turns out to be false could be liable what damages can be claimed. if the other contracting party relied on that statement when it entered into the contract and it was reasonable for it to do so. 1 TRG law law simplified What does the injured party have to prove? the basis of the difference in value between Assuming that a breach of contract, negligence or a what was delivered and what should have misrepresentation can be proved, the injured party been delivered; or must then establish that: the cost of curing the breach; or the breach, negligence or misrepresentation in wasted expenditure incurred in anticipation that question actually caused the damage suffered by the contract would be performed. the injured party; and Traditionally, the injured party had to choose the type of damage suffered passes the between these alternative bases but recently there ‘remoteness test’. inset box below has been some slight relaxation of that rule provided the Court is satisfied there will be no element of ‘double recovery’. WHAT IS THE ‘REMOTENESS TEST’? For negligence, an injured party may try to claim damages to put it back into the position it was in before the negligence occurred. For misrepresentation, in most cases an injured party may seek to recover damages on the same basis as for negligence. In contract, the test of remoteness enables injured The principal function of damages for breach of parties to recover: contract, negligence and misrepresentation is to compensate the injured party. losses arising naturally from the breach in the normal course of events; and Some losses that are recoverable Loss of profit will often be a direct loss and such losses as may reasonably be supposed to have been in both parties’ contemplation when therefore can be claimed. they made the contract, as a probable result of In principle, the cost of wasted management or the breach. staff time is recoverable as a type of damage that For negligence, the test of remoteness is simply can be claimed if an injured party can establish that that the damage must be reasonably foreseeable (ie management or staff have been significantly damage which a reasonable person could anticipate diverted from their usual activities. as the result of the negligence). Losses that are not recoverable For misrepresentations, there are different tests The injured party cannot claim damages for any for remoteness depending on whether the part of its loss which it could have avoided by misrepresentation claimed was innocent, negligent or fraudulent. taking reasonable steps. This is referred to as the ‘duty to mitigate’. inset box below Does the scale of damage matter? No, generally it is the type of loss which has to be WHAT IS THE DUTY TO MITIGATE? foreseen or contemplated in order to be recoverable not the precise detail or the extent of the damage. Once the type of loss is established as not being too remote, it should be possible to claim for all loss of The duty to mitigate is not an onerous one but that type, although recently some very senior the injured party: judges have stated that this will not always be the case. must take reasonable steps to minimise its loss; and must not take unreasonable steps to increase the loss. Where the injured party incurs expenses or What damages can be claimed? suffers loss due to taking reasonable steps to mitigate, it can recover those expenses or For breach of contract, an injured party may seek to losses. recover: the benefit which it expected to receive had the contract been performed in accordance with its terms. This benefit can be assessed either on: 2 TRG law law simplified Potential liability if there is no exclusion or negligence; limitation of liability misrepresentation; and So assuming a defaulting party is liable and the other party can prove this, if there are no exclusions or both acts and omissions. limitations on the defaulting party’s liability in the contract, then the potential liability can be very Failure to refer to negligence explicitly would be a significant. serious mistake because, for example, an exclusion or limitation in relation to ‘any loss’ may In particular the compensation awarded: not be sufficient to cover losses resulting from negligence. can be entirely unrelated to the value of the contract or the level of profit expected by the party in breach; and DO YOU NEED TO USE CAPITALS? for the same breach may vary considerably according to the particular individual circumstances of the injured party. There is no need to put exclusion or limitation It is therefore perhaps not too surprising that clauses in capitals or bold print, as often seen in contracting parties look to limit or exclude their US contracts. Although some US states liability as a matter of routine. specifically require capital letters to be used for liability clauses, there is no such requirement in England. BASIC LAW Legal restrictions - does the law impose any What is the basic law governing the constraints on one party’s ability to exclude exclusion and limitation of liability? or limit its liability to the other? The starting point under English law is that the parties are free to agree the terms of their There are three main points to consider here: contract between them. However, there are some legal constraints on this freedom - a contracting • incorporation; party cannot exclude or restrict liability at all for: • effectiveness; and fraud - exclusion or limitation clauses will not legal restrictions. be effective if they exclude or limit liability for fraud or fraudulent misrepresentation as a Incorporation – is the exclusion or limitation matter of public policy. validly incorporated into the contract? This is why in one recent notable case, the An exclusion or limitation provision will be assumed to injured party successfully managed to prove be incorporated if it is included within a signed, that the supplier’s salesman had been written agreement. deliberately dishonest amounting to fraud. The result was that the supplier was not able Otherwise, reasonable steps must be taken to bring to rely on its limitation of liability clause; the exclusion or limitation to the notice of the other party before the contract is made. death or personal injury caused by Generally, no particular special steps need to be taken negligence; to make sure that exclusion or limitation clauses are validly incorporated and the threshold for breach of the conditions implied by statute in incorporating standard terms into a contract with a sale of goods contracts that the seller has business customer is not particularly high. good title to the goods and that they are not inset box opposite above subject to any form of impediment. (The latter two bullet points are the result of the Effectiveness - is the exclusion or limitation effective to cover the breach? Unfair Contract Terms Act 1977 (“UCTA”)). The party seeking to rely upon the exclusion or Most limitation clauses will make it clear that they limitation must prove that it is effective in covering are not attempting to exclude or restrict liability the breach in question. A liability clause, for example, for such matters for fear that if any part of the must therefore specifically deal with all possible exclusion or limitation clause goes too far, all of the provision may be held to be unenforceable. bases of liability such as: breach of contract; 3 TRG law law simplified WHAT ARE ‘STANDARD TERMS’? THE UCTA RULES When will a clause be enforceable under UCTA? There is no definition of what ‘standard terms’ comprise but the Courts take a fairly robust view in judging whether a contract (or the provision in question) is on standard terms. Assuming UCTA applies inset box below - and that the Even where the rest of a contract has been fairly clause has been validly incorporated, covers the heavily negotiated, if the supplier’s standard particular type of claim in question and is not exclusion/limitation clauses have remained prohibited by law, the next point to consider is substantially unmodified during negotiations, the whether the clause is enforceable under UCTA.
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