Seriousness of the breach. On the other analysis, the cases demonstrated a rule of substantive law (not merely a rule of construction) that it was impossible for any clause (however widely drafted) to exclude liability for breaches which were ‘fundamental’. Support can be found in the earlier cases for both approaches – with the ‘rule of law’ approach particularly prominent

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seriousness of the breach. On the other analysis, the cases demonstrated a rule of substantive law (not merely a rule of construction) that it was impossible for any clause (however widely drafted) to exclude liability for breaches which were ‘fundamental’. Support can be found in the earlier cases for both approaches – with the ‘rule of law’ approach particularly prominent