Thanks for that...I didn't "get" that question either...think I'll avoid exclusion clauses like the plague now...
Checked the website like you said, and there wasn't anything up there? On Jan 30, 2:29 pm, brian <[email protected]> wrote: > Well, its really this (and I don't know if the examiner gets it)...I'm > doing submissions on this right now, so I'll just throw in a bit > here:- > > Limitation clauses aren't subject to the real rigour of the common law > principles that apply to exemption clauses. This is particularly the > case when it comes to asking if an ambiguously worded limitation > clause covers a particular breach (usually negligence). The Canadian > Steamship principles just aren't applied as harshly. In Ailsa Craig > Fishing Co Ltd v Malvern Fishing Co. Ltd [1983] 1 WLR 964, Lord > Wilberforce, that limitation clauses should not be treated “with the > same hostility as clauses of exclusion”. Lord Fraser thought that the > rules for the construction and interpretation of exclusion clauses > should not be applied in their “full rigour” to limitation clauses. > So, the following clause was perfectly fine:- > > “any loss of damage of whatever nature arising out of connect with the > provision of or failure in provision of, the services covered by this > contract…to a sum…not exceeding £1,000 [for] one claim…and…£10,000 for > the consequences of any incident involving fire, theft of any other > cause” > > In BHP Petroleum v British Steel [2000] 2 All ER (Comm) 133) Evans LJ > reminded us of the line from Ailsa:- > > "The more extreme the consequences are, in terms of excluding or > modifying the liability that would otherwise arise, then the more > stringent the court’s approach should be in requiring that clause be > clearly and unambiguously expressed." > > A very recent “summary” can be found in Biffa Waste Services Limited v > Maschinenfabrik Ernst Hese GMBH Outokumpu Technology Wenmec AB and ors > [2008] EWHC 6 (TCC). Ramsey J consider Ailsa and other cases and > held that the following represents the law: > > (1) Limitation of liability clauses are construed with less rigour > than exclusion of liability clauses or indemnity clauses. > > (2) The guidelines in Canada Steamship provide helpful guidance on the > proper approach to interpretation but do not lay down a code which > prescribes rigid rules to be applied mechanically to interpret a > particular clause. > > (3) The relevant clause must be construed in the context of the whole > instrument and against the admissible background, to ascertain whether > the wording, although literally wide enough to cover negligence, did > not do so. > > (4) In the case of exclusion clauses or indemnity clauses it is > inherently improbable that one party intended the clause to release > the other party from liability for negligence or impose an indemnity > for the other party's negligence. But, in the case of a limitation of > liability clause there is no such high degree of improbability. > > So, there is certainly a different attitude towards limitation clauses > than exclusion clauses. The question is really whether none of the > common law principles for exclusion of liability apply, or whether it > is simply a question of degree. No-one has really ever said that none > of the principle apply, rather that they just don’t apply with “full > rigour”. It would probably make sense that this is a question of > degree. Some limitation clauses will, for all intents and purposes, > operate as exclusion clauses (e.g. limiting recover to €10,000 for a > multi million Euro construction project) whereas others may not (e.g. > limiting consequential loss for couriers failure to deliver to > €50,000). > > For me, this all makes the examiners use of the words "limitation > clause" very unusual on the examinations. One year, the paper infers > they are the same, one year the paper infers they are different. > Again, with contract, the more you know, the more you can get punished > by how this examiner sets questions. My advice...always avoid > exclusion clause questions...they have never really been set with the > level of thought and particularlity that should expect on a > professional exam. > > On Jan 30, 1:19 pm, Wendy Lyon <[email protected]> wrote: > > > On 30/01/2009, brian <[email protected]> wrote: > > > > And sorry, one last point...be very, very able to distinguish > > > "exclusion" clauses from "limitation" clauses. The examiner isn't too > > > hot on this, but once asked a question directly on what the difference > > > is (i.e. thus telling students that there is a difference, and write > > > me an essay on it). > > > I saw that question and I couldn't really figure out where she wanted > > us to go with it. I mean obviously explain that one excludes liability > > altogether where the other one just limits it, and therefore the > > latter are less likely to be struck out by the courts ... but I > > couldn't figure out how we were supposed to get a whole essay out of > > it (actually I think it was half a question, but even so!). Then if > > you look at the examiner's report she wants you to talk about > > contra-proferentem and fundamental breach, which I would never have > > guessed from the wording of the question was what she was looking > > for... --~--~---------~--~----~------------~-------~--~----~ You received this message because you are subscribed to the Google Groups "FE-1 Study Group" group. To post to this group, send email to [email protected] To unsubscribe from this group, send email to [email protected] For more options, visit this group at http://groups.google.ie/group/FE-1-Study-Group?hl=en-GB -~----------~----~----~----~------~----~------~--~---
